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REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

WRIT PETITION (CIVIL) NO. 576 OF 2016

INDIAN HOTEL AND RESTAURANT

ASSOCIATION (AHAR) & ANR. .....APPELLANT(S)

VERSUS

THE STATE OF MAHARASHTRA & ORS. .....RESPONDENT(S)

W I T H

WRIT PETITION (CIVIL) NO. 24 OF 2017

A N D

WRIT PETITION (CIVIL) NO. 119 OF 2017

J U D G M E N T

A.K. SIKRI, J.

This batch of three Writ Petitions was heard together and is being

disposed of by this Common Judgment as similar issues and prayers

are raised in all these petitions.

2)The instant writ petitions have been preferred under Article 32 of the

Constitution of India, challenging certain provisions of the Maharashtra

Prohibition of Obscene Dance in Hotels, Restaurant and Bar Rooms and

Protection of Dignity of Women (Working therein) Act, 2016 (hereinafter

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referred to as the ‘Act’) and also the Rules framed there under being the

Maharashtra Prohibition of Obscene Dance in Hotels, Restaurant and

Bar Rooms and Protection of Dignity of Women (Working therein) Rules,

2016 (hereinafter referred to as the ‘Rules’) which, as the Petitioners

submit, violate the Fundamental Rights of the Petitioners guaranteed

under Articles 14, 15, 19 (1)(a), 19 (1)(g) and 21 of the Constitution of

India.

3)The petitioner No. 1 in Writ Petition (Civil) No. 576 of 2016 is an

Association of various Hotel Owners and Bar Owners and/or Conductors

of the same, who carry on business of running Restaurants and Bars in

Mumbai and is duly registered under the Trade Unions Act. Petitioner

No. 2 is the secretary of petitioner No. 1 and is a citizen of India, who

runs a restaurant and bar.

The petitioner in Writ Petition (Civil) No. 24 of 2017, R.R. Patil

Foundation is a registered Union under the provisions of the Bombay

Public Trust Act and the President thereof has been authorised to file the

writ petition.

The petitioner in Writ Petition (Civil) No. 119 of 2017 is the Bhartiya

Bargirls Union, registered under the Trade Union Act, 1926 and

represented through its Hony. President. The petition is filed in a

representative capacity on behalf of a large number of women dancers,

singers and waitresses.

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4)Respondent No.1 in all the three writ petitions is the State of

Maharashtra. The other respondents in the three petitions comprise of

various departments/authorities of the State of Maharashtra.

5)A brief historical description behind enacting this Act and the Rules is as

follows:

Any person intending to start an Eating House and Restaurant is

required to obtain permission from the Municipal Corporation under the

Mumbai Municipal Corporation Act as also the Food and Drugs

Administration. After a Grade-I licence is granted to the establishment,

and the establishment complies with the requirements under Rules 44

and 45 of the Bombay Foreign Liquor Rules, 1953 framed under the

provisions of the Bombay Prohibition Act, 1949, the establishment is

granted an FL III licence for sale of Indian Made Foreign Liquor (IMFL) in

the Restaurant. Further, persons desiring to serve only Beer in the

Restaurant apply for a licence under the Special Permit and Licenses

Rules framed under the provisions of the Bombay Prohibition Act, 1949

and are granted licenses in Form ‘E’ for running a Beer Bar. The

persons having Eating Houses besides obtaining an FL III or Form ‘E’

licence under the provisions of the relevant Rules framed under the

Bombay Prohibition Act, 1949, are required to have licence under the

Bombay Police Act, 1951, called the Public Entertainment Licence, from

respondent No.2, which is the Licensing Authority under the Rules

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framed for Licensing and Controlling Places of Public Entertainment in

Greater Mumbai, 1953. It is stated that the requirement of having

multiplicity of licenses is being done away by respondent No.1. Further,

any restaurant owner desiring to have music and dance or either music

or dance in the restaurant is also required to obtain Premises and

Performance Licence under the Rules for Licensing and Controlling

Places of Public Amusements (other than Cinemas) and Performances

for Public Amusement, including Melas and Tamasha’s Rules, 1960

(hereinafter referred to as the ‘Amusement Rules’) framed by

respondent No.2 under the powers vested in him under Section 33 of

the Maharashtra Police Act, 1951. According to the provisions of

Section 33 of the Maharashtra Police Act, 1951, respondent No.2 i.e. the

Commissioner of Police has been conferred with the power to frame

Rules. The Commissioner of Police can frame Rules for not only

licensing and controlling places of public amusement and entertainment

but also for taking necessary steps to prevent inconvenience etc. to

residents or passers-by or for maintaining public safety and for taking

necessary steps in the interests of public order, decency and morality.

The Commissioner of Police has accordingly framed Rules for Licensing

and Controlling Places of Public Entertainment, 1953 and the

Amusement Rules. According to the provisions of Chapter 8 of the said

Amusement Rules, a Premises Licence is granted after all the

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requirements prescribed under Rules 108 and 108(A) are complied with.

Chapter 9 of the said Amusement Rules prescribes all the conditions for

grant of a Performance Licence. As per the petitioners, their members

have been granted valid licences under the provisions of the said

Entertainment Rules and Amusement Rules and have been carrying on

business since the past several years and their licences have been

renewed from time to time.

6)As per the respondent State, it noticed that prostitution rackets were

being run in hotel establishments in which dance programmes were

being conducted. Even such dance forms were observed as obscene

by the State. This resulted in the formation of a Committee for

suggestions to deal with aspects mentioned above. After considering

guidelines given by the aforesaid Committee and independent studies

on socio-economic situations of women involved in dance bars, Section

33A and 33B were added vide Bombay Police Amendment Act, 2005 in

Maharashtra Police Act, 1951, (erstwhile Bombay Police Act, 1951)

which prohibited any kind of dance performance in an eating house,

permit room or beer bar. Section 33B provided an exception to Section

33A, in cases where the dance performance was held in a theatre, or a

club where entry was restricted to members only. The said amendment

was struck down as unconstitutional by High Court of Bombay and that

judgment of the High Court was upheld by this Court in the matter of

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State of Maharashtra & Anr. v. Indian Hotel and Restaurants

Association & Ors.

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{hereinafter referred to as the ‘Indian Hotel and

Restaurants Association (1)’}

7)Thereafter, the State of Maharashtra introduced a fresh provision vide

amendment in the year 2014 referred to as Maharashtra Police (Second

Amendment) Act, 2014 and added Section 33A to the Maharashtra

Police Act, 1951, while Section 33B came to be deleted. A petition

bearing Writ Petition (Civil) No.793 of 2014 came to be filed in this

Court, on behalf of Indian Hotel and Restaurants Association under

Article 32 of the Constitution of India, whereby the Maharashtra Police

(Second Amendment) Act, 2014 vide which vires of Section 33A, came

to be challenged on the ground of the same being violative of Article 14,

19 (1)(a), 19 (1)(g) and 21 of the Constitution of India. This Court issued

notice in the above writ petition and respondent State of Maharashtra

filed a counter affidavit, thereby opposing the writ petition. This Court,

vide order dated October 15, 2015, stayed the operation of the

provisions enshrined under Section 33A(1) of the Act with a rider that no

performance of dance shall remotely be expressive of any kind of

obscenity. It is, thereafter, that respondent No. 1 enacted the impugned

Act and the Rules, certain provisions whereof have been challenged in

these petitions. In view of the developments, Writ Petition (Civil) No.

1 (2013) 8 SCC 519

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793 of 2014 was disposed of as infructuous.

The impugned Act and the Rules:

8)The Preamble to the Act mentions that it is an Act to provide for

prohibition of obscene dance in hotels, restaurants, bar rooms and other

establishments and to improve the conditions of work, protect the dignity

and safety of women in such places with a view to prevent their

exploitation. The Act extends to the whole of the State of Maharashtra.

Section 2 of the Act provides definitions to certain terms and the relevant

among these are reproduced below:

"2(3) “bar room” means a place, to which the owner or proprietor

admits the public and where dances are staged by or at the

instance of the owner or proprietor of such establishment for the

entertainment of customers;

(4) “dancer” means any artist performing dance on the stage or in

any part of the premises;

(8) “obscene dance” means a dance that is obscene within the

meaning of Section 294 of the Indian Penal Code and any other

law for the time being in force and shall include a dance, -

(i) which is designed only to arouse the prurient interest of the

audience; and

(ii) which consists of a sexual act, lascivious movements,

gestures for the purpose of sexual propositioning or indicating the

availability of sexual access to the dancer, or in the course of

which, the dancer exposes his or her genitals or, if a female, is

topless;

(10) “place” includes a establishment, house, building, tent and

any means of transport whether by sea, land or air;”

9)As per Section 3, no person is entitled to start hotel, restaurant, bar

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room or any other place where dances are staged, without obtaining a

licence under this Act and without complying with the conditions and

restrictions imposed by the Act and the Rules. Section 4 mentions

licensing authority, competent to grant licence. Section 5 stipulates

certain conditions which are to be fulfilled in the absence whereof

licensing authority is not to grant licence under the Act. It reads as

under:

"5. The licensing authority shall not grant licence under this

Act unless it is satisfied that,-

(a) the conditions prescribed by this Act and the Rules have

been complied with by the applicant,

(b) adequate conditions of work and provisions for safety in

respect of women employed in the hotel, restaurant or bar

room as prescribed have been provided, and

(c) adequate precautions have been taken in the place, in

respect of which the licence is to be given, to provide for the

safety of the persons visiting such place.”

10) Section 6 lays down the procedure for grant of licence. For this

purpose, any person desirous to obtain the licence will have to move an

application as per the format prescribed and fulfill the eligibility criteria as

prescribed. As per sub-section (4) of Section 6 the licensing authority is

not supposed to grant licence for the place for which a licence for

Discotheque or Orchestra have been granted. Exact language of this

sub-section (4) is as under:

"(4) Notwithstanding anything contained in the Maharashtra

Police Act, no licence shall be granted for Discotheque or

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Orchestra, in the place for which the licence under this Act is

granted, nor a licence shall be granted under this Act for the place

for which a licence for Discotheque or Orchestra has been

granted.”

11) Section 8 prescribes criminal and civil consequences for using the

place in contravention of Section 3 i.e. without obtaining the licence. It is

to the following effect:

"8(1) The owner or proprietor or manager or any person acting on

his behalf, who uses the place in contravention of section 3 shall,

on conviction, be punished with imprisonment for a term which

may extend to five years or fine which may extend to rupees

twenty-five lakhs, or with both; and in case of continuing offence,

further fine of rupees twenty-five thousand for each day during

which the offence continues.

(2) The owner or proprietor or manager or any person acting on

his behalf, shall not allow any obscene dance or exploit any

working woman for any immoral purpose in any place and the

person committing such act shall, on conviction, be punished with

imprisonment for a term which may extend to three years or a fine

which may extend to rupees ten lakhs, or with both; and in case of

continuing offence, further fine which may extend to rupees ten

thousand for each day during which the offence continues.

(3) The offences under sub-sections (1) and (2) shall be

cognizable and non-bailable and triable by a Judicial Magistrate of

the First Class.

(4) No person shall throw or shower coins, currency notes or any

article or anything which can be monetized on the stage or hand

over personally or through any means coins, currency notes or

any article or anything which can be monetized, to a dancer or

misbehave or indecently behave with the working women or touch

her person, in any place. Any person who commits such act or

abets the commission of such acts shall, on conviction, be

punished with imprisonment for a term which may extend to six

months or a fine which may extend to rupees fifty thousand, or

with both.

(5) The offence punishable under sub-section (4) shall be

non-cognizable and bailable and triable by a Judicial Magistrate of

the First Class.

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(6) Any person who contravenes any of the provisions of this Act

for which no other punishment has been provided, shall, on

conviction, be punished with imprisonment for a term which may

extend to three months or fine which may extend to rupees

twenty-five thousand, or with both.”

12) The provisions are also made for appeal, revision etc. against the

order of the licensing authority refusing to grant licence. As per Section

12, Grievance Redressal Committee is to be constituted by the State

Government to ensure that the conditions of service of women working

in the hotel, restaurant, bar rooms and establishment to which the

provisions of this Act apply are duly observed. This Committee is given

the task to redress the grievances of such women in such manner as

may be prescribed.

13) We may mention here that challenge in these writ petitions is laid

to the provisions of Sections 2(8)(i), Section 6(4), Section 8(1)(2) and (4)

of the Act.

14) Section 14 of the Act empowers the State Government to make

rules to carry out the purposes of the Act for which notification in the

Official Gazette is to be issued. These rules are to be laid before each

House of the State Legislature. Section 15 gives powers to the State

Government to issue orders in case any difficulty arises in giving effect

to the provisions of the Act.

15) In exercise of powers conferred by Section 14 of the Act, Rules

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have been framed. Rule 3 pertains to the application for licence and

lays down the conditions for making such an application. It is couched

in the following language:

"3. Application for licence. - A person shall be entitled to obtain or

hold a licence under these Rules, if he,-

(i) has attained 21 years of age;

(ii) is a citizen of India or a partner of partnership firm registered

under the Indian Partnership Act, 1932 or a company registered

under the Companies Act, 1956 or the Companies Act, 2013;

(iii) possess a good character and antecedents and shall not

have any history of criminal record in the past:

Provided that, the licensing authority shall consider the

history of criminal record of the applicant upto ten years

before the date of application; and

(iv) complies with the conditions specified in Part-A of the

Schedule.”

16) Schedule attached to the Rules mentions the conditions which are

to be complied with. Part A thereof stipulates those conditions which are

to be fulfilled before grant of licence whereas Part B stipulates the

conditions which are to be fulfilled after grant of licence. It is not

necessary to reproduce all those conditions. Since, condition Nos. 2

and 11 of Part A and condition Nos. 2, 6, 9, 12, 16, 17 and 20 of Part B

are the subject matter of challenge in these petitions, we are

reproducing these conditions hereinbelow:

"SCHEDULE

General Conditions

PART-A

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Conditions to be complied before grant of Lincence

2. One stage should not be less than 10ft. x 12ft. in size in bar

room, with non-transparent partition between hotel, restaurant and

bar room area. If the applicant is holding permit room licence

then there shall be fixed partition between the permit room and

dance room.

xx xx xx

11. The place shall be at least one kilometer away from the

educational and religious institutions.

PART-B

Conditions to be fulfilled after grant of Licence

2. The working women, the dancers and waiters/ waitresses must

be employed under a written contract on a monthly salary to be

deposited in their bank accounts (with all other benefits as

required by law, including provident fund) and a copy of such

contract must be deposited with the licensing authority.

xx xx xx

6. Customer shall not be permitted to thrown or shower coins,

currency notes or any article or anything which can be monetized

on the stage in the direction of the dancer. Customers may,

however, make payment of a tip in appreciation of all the dancers

by adding a sum to the amount of the bill. Such tip shall be paid

by the licensee to the dancers of that evening and under no

circumstances such sum shall be deducted from the monthly

salary.

xx xx xx

9. The bar room where dances are staged shall be open for

public only between 6.00 P.M. to 11.30 P.M.

xx xx xx

12. No alcoholic beverage shall be served in the bar room where

dances are staged.

xx xx xx

16. The Licensee shall ensure that the employees have no

criminal antecedents.

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17. The Licensee shall not allow any modification or alternation in

the premises without the permission of the licensing authority.

xx xx xx

20. The Licensee shall ensure that all entrances of the bar room,

other places of amusement or public entertainment and the area

which falls under the definition of public place shall be covered by

CCTV cameras and recording shall be preserved for 30 days for

the inspection by the Competent Police Authority, if it is

requisitioned by him.”

17) Before we advert to the arguments advanced by the counsel for

the petitioners on the basis of which validity of the aforesaid provisions

of the Act and the Rules is questioned, it would be necessary to discuss

the judgment of this Court rendered in 2013 in the case of Indian Hotel

and Restaurants Association (1). The reason for this course of action

is that many arguments of the petitioners proceed on the basis that

some of the provisions in the Acts and the Rules are akin to Sections

33A and 33B which were inserted vide Bombay Police Amendment Act,

2005 in Maharashtra Police Act, 1951. Even otherwise, the reasoning

contained in the said judgment on the basis of which the aforesaid

provisions were struck down was heavily relied upon by the petitioners.

18) Indian Hotel and Restaurants Association (1)

As already noted above, any person intending to start an eating

house and restaurant is required to have certain licenses under the

Bombay Police Act which is known as public entertainment licence.

Likewise, any restaurant owner desirous to have music or dance or

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either music or dance in the restaurant is further required to obtain

Premises and Performance Licence under the Amusement Rules. This

power to give licence is vested with the Commissioner of Police as per

Section 33 of the Maharashtra Police Act, 1951. Sections 33A and 33B

were added by Amendment Act, 2005. These provisions along with

Statement of Objects and Reasons are as under:

"Statement of Objects and Reasons

21. The Statement of Objects and Reasons clause appended to

Bill No. 40 of 2005 as introduced in the Maharashtra Legislative

Assembly on 14-6-2005 reads as under:

“(1) The Commissioner of Police, District Magistrates or

other officers, being Licensing Authorities under the Rules

framed in exercise of the powers of sub-section (1) of

Section 33 of the Bombay Police Act, 1951 have granted

licences for holding dance performance in the area under

their respective charges in the State. The object of granting

such performance licence is to hold such dance

performance for public amusement. It is brought to the

notice of the State Government that the eating houses or

permit rooms or beer bars to whom licences to hold dance

performance, have been granted are permitting the

performance of dances in an indecent, obscene or vulgar

manner. It has also been brought to the notice of the

Government that such performance of dances are giving rise

to exploitation of women. The Government has received

several complaints regarding the manner of holding such

dance performances. The Government considers that the

performance of dances in eating houses, permit rooms or

beer bars in an indecent manner is derogatory to the dignity

of women and is likely to deprave, corrupt or injure the public

morality or morals. The Government considers it expedient

to prohibit the holding of such dance performances in eating

houses or permit rooms or beer bars.

(2) In the last Budget Session of the State Legislature, by

way of a calling attention motion, the attention of the

Government was invited to mushroom growth of illegal

dance bars and their ill effects on the society in general

including ruining of families. The members of the State

Legislature, from ruling and opposition sides, pointed out

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that such dance bars are used as meeting points by

criminals and pick-up joints of girls for indulging in immoral

activities and demanded that such dance bars should,

therefore, be closed down. These dance bars are attracting

young girls desirous of earning easy money and thereby

such girls are involved in immoral activities. Having

considered the complaints received from general public

including the people's representatives, the Government

considers it expedient to prohibit the performance of dance,

of any kind or type, in an eating house or permit room or

beer bar, throughout the State by suitably amending the

Bombay Police Act, 1951. However, a provision is also made

to the effect that holding of a dance performance in a drama

theatre or cinema theatre or auditorium; registered sports

club or gymkhana; or three-starred or above hotel; or in any

other establishment or class establishments which the State

Government may specify having regard to tourism policy for

promotion of tourism in the State or cultural activities, are not

barred but all such establishments shall be required to

obtain performance licence in accordance with the said

Rules, for holding a dance performance.

3. The Bill is intended to achieve the following objectives.

33-A.Prohibition of performance of dance in eating house,

permit room or beer bar and other consequential provisions.

—(1) Notwithstanding anything contained in this Act or the Rules

made by the Commissioner of Police or the District Magistrate

under sub-section (1) of Section 33 for the area under their

respective charges, on and from the date of commencement of

the Bombay Police (Amendment) Act, 2005—

(a) holding of a performance of dance, of any kind or type, in any

eating house, permit room or beer bar is prohibited;

(b) all performance licences, issued under the aforesaid Rules by

the Commissioner of Police or the District Magistrate or any other

officer, as the case may be, being the licensing authority, to hold a

dance performance, of any kind or type, in an eating house,

permit room or beer bar shall stand cancelled.

(2) Notwithstanding anything contained in Section 131, any

person who holds or causes or permits to be held a dance

performance of any kind or type, in an eating house, permit room

or beer bar in contravention of sub-section (1), shall, on

conviction, be punished with imprisonment for a term which may

extend to three years and with fine which may extend to rupees

two lakhs:

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Provided that, in the absence of special and adequate

reasons to the contrary to be mentioned in the judgment of the

court, such imprisonment shall not be less than three months and

fine shall not be less than rupees fifty thousand.

(3) If it is noticed by the licensing authority that any person, whose

performance licence has been cancelled under sub-section (1),

holds or causes to be held or permits to hold a dance

performance of any kind or type in his eating house, permit room

or beer bar, the licensing authority shall, notwithstanding anything

contained in the Rules framed under Section 33, suspend the

certificate of registration as an eating house and the licence to

keep a place of public entertainment (PPEL) issued to permit

room or a beer bar and within a period of 30 days from the date of

suspension of the certificate of registration and licence, after

giving the licensee a reasonable opportunity of being heard, either

withdraw the order of suspending the certificate of registration and

the licence or cancel the certificate of registration and the licence.

(4)-(5)

(6) The offence punishable under this section shall be cognizable

and non-bailable.

33-B. Non-applicability of the provisions of Section 33-A in

certain cases.—Subject to the other provisions of this Act, or any

other law for the time being in force, nothing in Section 33-A shall

apply to the holding of a dance performance in a drama theatre,

cinema theatre and auditorium; or sports club or gymkhana,

where entry is restricted to its members only, or a three-starred or

above hotel or in any other establishment or class of

establishments, which, having regard to (a) the tourism policy of

the Central or State Government for promoting the tourism

activities in the State; or (b) cultural activities, the State

Government may, by special or general order, specify in this

behalf.

Explanation.—For the purposes of this section, ‘sports club’

or ‘gymkhana’ means an establishment registered as such under

the provisions of the Bombay Public Trusts Act, 1950, or the

Societies Registration Act, 1860 or the Companies Act, 1956, or

any other law for the time being in force.”

19) It is the validity of these provisions which was the subject matter of

the appeals before the Supreme Court as Bombay High Court had

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declared these provisions as unconstitutional, being violative of Articles

14, 19(1)(a) and 19(1)(g) of the Constitution. It may be noted that in the

writ petitions filed in the High Court, these provisions were challenged as

violative of Articles 15(1) and 21 as well. However, challenge on these

grounds was repelled by the High Court. The High Court had held that

these provisions suffer from the vice of arbitrariness and, therefore,

violative of Article 14 of the Constitution, as they provide for different

standards of morality to institutions with similar activities and the

activities in Section 33A establishments are less obscene but

nonetheless the classification bears no nexus to the object of the

Amendment. It was also held that there is a violation of Article 19(1)(a)

as dance is a form of expression and the impugned enactment is

unreasonable restriction which is not protective by Article 19(2) of the

Constitution. Further, these provisions amount to an unreasonable

restriction on the right to freedom of profession as the State Government

permitted and granted licenses for running such establishments being

res commercium and that it deprives the bar owners on their right to

carry on their profession and bar dancers to carry on their profession.

20) While upholding the decision of the High Court founded on

invidious discrimination and, as such, violative of Article 14 of the

Constitution, this Court, inter alia, stated the following reasons:

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"118. The High Court, in our opinion, has rightly declined to rely

upon the PRAYAS and Shubhada Chaukar's Reports. The number

of respondents interviewed was so miniscule as to render both the

studies meaningless. As noticed earlier, the subsequent report

submitted by SNDT University has substantially contradicted the

conclusions reached by the other two reports. The situation herein

is not similar to the circumstances which led to the decision in

Radice [68 L Ed 690 : 264 US 292 (1924)] . In that case, a New

York statute was challenged as it prohibited employment of

women in restaurants in cities of first and second class between

hours of 10 p.m. and 6 a.m., on the ground of: (1) due process

clause, by depriving the employer and employee of their liberty to

contract, and (2) the equal protection clause, by an unreasonable

and arbitrary classification. The Court upheld the legislation on the

first ground that the State had come to the conclusion that night

work prohibited, so injuriously threatens to impair women's

peculiar and natural functions. Such work, according to the State,

exposes women to the dangers and menaces incidental to

nightlife in large cities. Therefore, it was permissible to enable the

police to preserve and promote the public health and welfare. The

aforesaid conclusion was, however, based on one very important

factor which was that: (Radice case [68 L Ed 690 : 264 US 292

(1924)] , L Ed p. 694)

“The legislature had before it a mass of information from

which it concluded that night work is substantially and

especially detrimental to the health of women.”

In our opinion, as pointed out by the learned counsel for the

respondents, in the present case, there was little or no material on

the basis of which the State could have concluded that dancing in

the prohibited establishments was likely to deprave, corrupt or

injure the public morality or morals.

119. The next justification for the so-called intelligible differentia is

on the ground that women who perform in the banned

establishment are a vulnerable lot. They come from grossly

deprived backgrounds. According to the appellants, most of them

are trafficked into bar dancing. We are unable to accept the

aforesaid submission. A perusal of the Objects and Reasons

would show that the impugned legislation proceed on a

hypothesis that different dance bars are being used as meeting

points of criminals and pick-up points of the girls. But the Objects

and Reasons say nothing about any evidence having been

presented to the Government that these dance bars are actively

involved in trafficking of women. In fact, this plea with regard to

trafficking of women was projected for the first time in the affidavit

filed before the High Court. The aforesaid plea seems to have

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been raised only on the basis of the reports which were submitted

after the ban was imposed. We have earlier noticed the extracts

from the various reports. In our opinion, such isolated examples

would not be sufficient to establish the connection of the dance

bars covered under Section 33-A with trafficking. We, therefore,

reject the submission of the appellants that the ban has been

placed for the protection of the vulnerable women.

120. The next justification given by the learned counsel for the

appellants is on the basis of degree of harm which is being

caused to the atmosphere in the banned establishments and the

surrounding areas. Undoubtedly as held by this Court in Ram

Krishna Dalmia case [AIR 1958 SC 538] , the legislature is free to

recognise the degrees of harm and may confine its restrictions to

those cases where the need is deemed to be the clearest. We

also agree with the observations of the US Court in Patsone case

[58 L Ed 539 : 232 US 138 (1914)] that the State may direct its

law against what it deems the evil as it actually exists without

covering the whole field of possible abuses, but such conclusion

have to be reached either on the basis of general consensus

shared by the majority of the population or on the basis of

empirical data. In our opinion, the State neither had the empirical

data to conclude that dancing in the prohibited establishment

necessarily leads to depravity and corruption of public morals nor

was there general consensus that such was the situation. The

three reports presented before the High Court in fact have

presented divergent viewpoints. Thus, the observations made in

Patsone [58 L Ed 539 : 232 US 138 (1914)] are not of any help to

the appellant. We are also conscious of the observations made by

this Court in Mohd. Hanif Quareshi [AIR 1958 SC 731] , wherein it

was held that there is a presumption that the legislature

understands and appreciates the needs of its people and that its

laws are directed to problems made manifest by experience and

that its discriminations are based on adequate grounds. In the

present case, the appellant has failed to give any details of any

experience which would justify such blatant discrimination, based

purely on the class or location of an establishment.

121. We are of the opinion that the State has failed to justify the

classification between the exempted establishments and

prohibited establishments on the basis of surrounding

circumstances, or vulnerability. Undoubtedly, the legislature is the

best judge to measure the degree of harm and make reasonable

classification but when such a classification is challenged the

State is duty-bound to disclose the reasons for the ostensible

conclusions. In our opinion, in the present case, the legislation is

based on an unacceptable presumption that the so-called elite i.e.

rich and the famous would have higher standards of decency,

20

morality or strength of character than their counterparts who have

to content themselves with lesser facilities of inferior quality in the

dance bars. Such a presumption is abhorrent to the resolve in the

Preamble of the Constitution to secure the citizens of India

“equality of status and opportunity and dignity of the individual”.

The State Government presumed that the performance of an

identical dance item in the establishments having facilities less

than three stars would be derogative to the dignity of women and

would be likely to deprave, corrupt or injure public morality or

morals; but would not be so in the exempted establishments.

These are misconceived notions of a bygone era which ought not

to be resurrected.

122. Incongruously, the State does not find it to be indecent,

immoral or derogatory to the dignity of women if they take up

other positions in the same establishments such as receptionist,

waitress or bartender. The women who serve liquor and beer to

customers do not arouse lust in customers but women dancing

would arouse lust. In our opinion, if a certain kind of dance is

sensuous in nature and if it causes sexual arousal in men it

cannot be said to be more in the prohibited establishments and

less in the exempted establishments. Sexual arousal and lust in

men and women and degrees thereof, cannot be said to be

monopolised by the upper or the lower classes. Nor can it be

presumed that sexual arousal would generate different character

or behaviour, depending on the social strata of the audience.

History is replete with examples of crimes of lust committed in the

highest echelons of the society as well as in the lowest levels of

society. The High Court has rightly observed, relying on the

observations of this Court in Gaurav Jain v. Union of India [(1997)

8 SCC 114 : 1998 SCC (Cri) 25] that: ( Indian Hotel and

Restaurants Assn. Case [(2006) 3 Bom CR 705] , Bom Cr p. 744,

para 48)

“48. ‘27.… Prostitution in five-star hotels is a licence given to

persons from higher echelons.’ (Gaurav Jain case [(1997) 8

SCC 114 : 1998 SCC (Cri) 25] , SCC p. 132, para 27)”

21) Likewise, arguments of the State questioning the opinion of the

High Court as the provisions to be ultra vires Article 19(1)(g) were

rejected by this Court with the following discussion:

"126. Upon analysing the entire fact situation, the High Court has

held that dancing would be a fundamental right and cannot be

excluded by dubbing the same as res extra commercium. The

21

State has failed to establish that the restriction is reasonable or

that it is in the interest of general public. The High Court rightly

scrutinised the impugned legislation in the light of observations of

this Court made in Narendra Kumar [AIR 1960 SC 430 : (1960) 2

SCR 375] , wherein it was held that greater the restriction, the

more the need for scrutiny. The High Court noticed that in the

guise of regulation, the legislation has imposed a total ban on

dancing in the establishments covered under Section 33-A. The

High Court has also concluded that the legislation has failed to

satisfy the doctrine of direct and inevitable effect. (See Maneka

Gandhi case [(1978) 1 SCC 248] .) We see no reason to differ

with the conclusions recorded by the High Court. We agree with

Mr Rohatgi and Dr Dhavan that there are already sufficient rules

and regulations and legislation in place which, if efficiently

applied, would control if not eradicate all the dangers to the

society enumerated in the Preamble and the Statement of Objects

and Reasons of the impugned legislation.

127. The activities of the eating houses, permit rooms and beer

bars are controlled by the following regulations:

(i) The Bombay Municipal Corporation Act;

(ii) The Bombay Police Act, 1951;

(iii) The Bombay Prohibition Act, 1949;

(iv) The Rules for Licensing and Controlling Places of Public

Entertainment, 1953;

(v) The Rules for Licensing and Controlling Places of Public

Amusement other than Cinemas;

(vi) And other orders as are passed by the Government from time

to time.

128. The restaurants/dance bar owners also have to obtain

licences/permissions as listed below:

(i) Licence and registration for eating house under the Bombay

Police Act, 1951;

(ii) Licence under the Bombay Shops and Establishment Act,

1948 and the rules made thereunder;

(iii) Eating house licence under Sections 394, 412-A, 313 of the

Bombay Municipal Corporation Act, 1888;

(iv) Health licence under the Maharashtra Prevention of Food

Adulteration Rules, 1962;

(v) Health licence under the Mumbai Municipal Corporation Act,

1888 for serving liquor;

22

(vi) Performance licence under Rules 118 of the Amusement

Rules, 1960;

(vii) Premises licence under Rule 109 of the Amusement Rules;

(viii) Licence to keep a place of public entertainment under

Section 33(1) clauses (w) and (y) of the Bombay Police Act, 1951

and the said Entertainment Rules;

(ix) FL III licence under the Bombay Prohibition Act, 1949 and

Rule 45 of the Bombay Foreign Liquor Rules, 1953 or a Form E

licence under the Special Permits and Licences Rules for selling

or serving IMFL and beer;

(x) Suitability certificate under the Amusement Rules.

129. Before any of the licences are granted, the applicant has to

fulfill the following conditions:

(i) Any application for premises licence shall be accompanied by

the site plan indicating inter alia the distance of the site from any

religious, educational institution or hospital.

(ii) The distance between the proposed place of amusement and

the religious place or hospital or educational institution shall be

more than 75 m.

(iii) The proposed place of amusement shall not have been

located in the congested and thickly populated area.

(iv) The proposed site must be located on a road having width of

more than 10 m.

(v) The owners/partners of the proposed place of amusement

must not have been arrested or detained for anti-social or any

such activities or convicted for any such offences.

(vi) The distance between two machines which are to be installed

in the video parlour shall be reflected in the plan.

(vii) No similar place of public amusement exists within a radius of

75 m.

(viii) The conditions mentioned in the licence shall be observed

throughout the period for which the licence is granted and if there

is a breach of any one of the conditions, the licence is likely to be

cancelled after following the usual procedure.

130. The aforesaid list, enactments and regulations are further

supplemented with the regulations protecting the dignity of

women. The provisions of the Bombay Police Act, 1951 and more

particularly Section 33(1)(w) of the said Act empowers the

licensing authority to frame rules:

23

“licensing or controlling places of public amusement or

entertainment and also for taking necessary steps to prevent

inconvenience to residents or passers-by or for maintaining

public safety and for taking necessary steps in the interests

of public order, decency and morality.”

131. Rules 122 and 123 of the Amusement Rules, 1960 also

prescribe conditions for holding performances:

“122.Acts prohibited by the holder of a performance

licence.—No person holding a performance licence under

these Rules shall, in the beginning, during any interval or at

the end of any performance, or during the course of any

performance, exhibition, production, display or staging,

permit or himself commit on the stage or any part of the

auditorium—

(a) any profanity or impropriety of language;

(b) any indecency of dress, dance, movement or gesture;

Similar conditions and restrictions are also prescribed under

the performance licence:

***

The licensee shall not, at any time before, during the course of or

subsequent to any performance, exhibition, production, display or

staging, permit or himself commit on the stage or in any part of

the auditorium or outside it:

(i) any exhibition or advertisement whether by way of posters

or in the newspapers, photographs of nude or scantily

dressed women;

(ii) any performance at a place other than the place

provided for the purpose;

(iii) any mixing of the cabaret performers with the audience

or any physical contact by touch or otherwise with any

member of the audience;

(iv) any act specifically prohibited by the Rules.”

132. The Rules under the Bombay Police Act, 1951 have been

framed in the interest of public safety and social welfare and to

safeguard the dignity of women as well as prevent exploitation of

women. There is no material placed on record by the State to

show that it was not possible to deal with the situation within the

framework of the existing laws except for the unfounded

24

conclusions recorded in the Preamble as well as the Statement of

Objects and Reasons. [See State of Gujarat v. Mirzapur Moti

Kureshi Kassab Jamat [(2005) 8 SCC 534 : AIR 2006 SC 212]

wherein it is held that: (SCC p. 573, para 75) the standard of

judging reasonability of restriction or restriction amounting to

prohibition remains the same, excepting that a total prohibition

must also satisfy the test that a lesser alternative would be

inadequate.] The Regulations framed under Section 33(1)(w) of

the Bombay Police Act, more so Regulations 238 and 242 provide

that the licensing authority may suspend or cancel a licence for

any breach of the licence conditions. Regulation 241 empowers

the licensing authority or any authorised police officer, not below

the rank of Sub-Inspector, to direct the stoppage of any

performance forthwith if the performance is found to be

objectionable. Section 162 of the Bombay Police Act empowers a

competent authority/Police Commissioner/ District Magistrate to

suspend or revoke a licence for breach of its conditions. Thus,

sufficient power is vested with the licensing authority to safeguard

any perceived violation of the dignity of women through obscene

dances.

133. From the objects of the impugned legislation and

amendment itself, it is crystal clear that the legislation was

brought about on the admission of the police that it is unable to

effectively control the situation in spite of the existence of all the

necessary legislation, rules and regulations. One of the

submissions made on behalf of the appellants was to the effect

that it is possible to control the performances which are conducted

in the establishments falling within Section 33-B; the reasons

advanced for the aforesaid only highlight the stereotype myths

that people in upper strata of society behave in orderly and

moralistic manner. There is no independent empirical material to

show that propensity of immorality or depravity would be any less

in these high-class establishments. On the other hand, it is the

specific submission of the appellants that the activities conducted

within the establishments covered under Section 33-A have the

effect of vitiating the atmosphere not only within the

establishments but also in the surrounding locality. According to

the learned counsel for the appellants, during dance in the bars

the dancers wore deliberately provocative dresses. The dance

becomes even more provocative and sensual when such

behaviour is mixed with alcohol. It has the tendency to lead to

undesirable results. Reliance was placed upon State of Bombay v.

R.M.D. Chamarbaugwala [AIR 1957 SC 699], Khoday Distilleries

Ltd. v. State of Karnataka [(1995) 1 SCC 574], State of Punjab v.

Devans Modern Breweries Ltd. [(2004) 11 SCC 26], New York

State Liquor Authority v. Bellanca [69 L Ed 2d 357 : 452 US 714

(1981)] and R. v. Quinn [(1962) 2 QB 245 : (1961) 3 WLR 611 :

25

(1961) 3 All ER 88 (CCA)] to substantiate the aforesaid

submissions. Therefore, looking at the degree of harm caused by

such behaviour, the State enacted the impugned legislation.

134. We are undoubtedly bound by the principles enunciated by

this Court in the aforesaid cases, but these are not applicable to

the facts and circumstances of the present case. In Khoday

Distilleries Ltd. [(1995) 1 SCC 574] , it was held that there is no

fundamental right inter alia to do trafficking in women or in slaves

or to carry on business of exhibiting and publishing pornographic

or obscene films and literature. This case is distinguishable

because of the unfounded presumption that women are

being/were trafficked in the bars. State of Punjab v. Devans

Modern Breweries Ltd.[(2004) 11 SCC 26] dealt with liquor trade,

whereas the present case is clearly different. The reliance on New

York State Liquor Authority [69 L Ed 2d 357 : 452 US 714 (1981)]

is completely unfounded because in that case endeavour of the

State was directed towards prohibiting topless dancing in an

establishment licensed to serve liquor. Similarly, R. v. Quinn

[(1962) 2 QB 245 : (1961) 3 WLR 611 : (1961) 3 All ER 88 (CCA)]

dealt with indecent performances in a disorderly house. Hence,

this case will also not help the appellants. Therefore, we are not

impressed with any of these submissions. All the activities

mentioned above can be controlled under the existing regulations.

135. We do not agree with the submission of Mr Subramanium

that the impugned enactment is a form of additional regulation, as

it was felt that the existing system of licence and permits were

insufficient to deal with problem of ever-increasing dance bars.

We also do not agree with the submissions that whereas

exempted establishments are held to standards higher than those

prescribed; the eating houses, permit rooms and dance bars

operate beyond/below the control of the regulations. Another

justification given is that though it may be possible to regulate

these permit rooms and dance bars which are located within

Mumbai, it would not be possible to regulate such establishments

in the semi-urban and rural parts of the Maharashtra. If that is so,

it is a sad reflection on the efficiency of the licensing/regulatory

authorities in implementing the legislation.

136. The end result of the prohibition of any form of dancing in the

establishments covered under Section 33-A leads to the only

conclusion that these establishments have to shut down. This is

evident from the fact that since 2005, most if not all the dance bar

establishments have been literally closed down. This has led to

the unemployment of over 75,000 women workers. It has been

brought on the record that many of them have been compelled to

take up prostitution out of necessity for maintenance of their

26

families. In our opinion, the impugned legislation has proved to be

totally counter-productive and cannot be sustained being ultra

vires Article 19(1)(g).”

Submissions of the petitioners:

22) Mr. Jayant Bhushan, learned senior counsel began his

submissions with a fervent plea that the respondent State was bent

upon banning altogether dance performances in the bars/permit homes

or restaurants etc. His argument was that earlier two attempts of

identical nature made by the respondents failed to pass the

constitutional muster. The provisions of Sections 33A and 33B inserted

vide Amendment Act, 2005 to the Bombay Police Act, 1951 had been

struck down as unconstitutional being in contravention of Articles 14 and

19(1)(g) of the Constitution. In spite thereof, the State did not grant

licences to any person including the petitioners. This deliberate inaction

on the part of the State led to filing of the contempt petition by the

petitioners in which notice was issued on May 05, 2014. After receiving

the notice in the said contempt petition, the State brought on the statute

book Section 33A in another avtar by amendment Act on June 25, 2014.

According to the petitioners, it was verbatim similar to Section 33A which

was already held unconstitutional and it is, for this reason, in Writ

Petition (Civil) No. 793 of 2014 wherein constitutionality of this provision

was challenged, this Court passed orders dated October 15, 2015

staying the operation of newly added Section 33A of the Bombay Police

27

Act. Thereafter, on November 26, 2015, this Court directed licences to

be granted in two weeks. In order to frustrate the aforesaid directions of

this Court, respondents came up with 26 new conditions for grant of

licence. As the petitioners had objection to some of the conditions,

another application was moved in Writ Petition (Civil) No. 9793 of 2014.

After orders dated March 02, 2016 were passed by the Court modifying

some of the said 26 conditions, on April 18, 2016, this Court granted one

week time to the respondents to comply with its directions. Again, with

intention to frustrate the effect of the judgment of this Court, the

respondents passed the impugned legislation and also framed

impugned rules thereunder.

23) Mr. Bhushan further pointed out that even when certain orders

were passed by the Supreme Court for issuance of the licence and for

processing other applications on the principle of parity, till date not a

single licence has been issued to any of the petitioners/members of the

association. All this amply shows that the only intention of the State is to

put an absolute ban on dance bars, as the respondent State is ensuring

that licences are rejected on one ground or the other. He also

endeavoured to demonstrate this by reading the orders passed by the

State rejecting each and every application that has been made for grant

of licence even under the new Act and Rules.

28

24) Mr. Bhushan specifically referred to the following passage from the

earlier judgment wherein plea of public interest or morality was repelled:

"53. With regard as to whether there is any infringement of rights

under Article 19(1)(g), it is submitted by the learned Senior

Counsel that the fundamental right under Article 19(1)(g) to

practise any profession, trade or occupation is subject to

restrictions in Article 19(6). Therefore, by prohibiting dancing

under Section 33-A, no right of the bar owners are being infringed.

The curbs imposed by Sections 33-A and 33-B only restrict the

owners of the prohibited establishments from permitting dances to

be conducted in the interest of general public. The term “interest

of general public” is a wide concept and embraces public order

and public morality. The reliance in support of this proposition was

placed on State of Gujarat v. Mirzapur Moti Kureshi Kassab Jamat

[(2005) 8 SCC 534 : AIR 2006 SC 212]. Reference was also made

to Municipal Corpn. of the City of Ahmedabad v. Jan Mohammed

Usmanbhai [(1986) 3 SCC 20], wherein this Court gave a wide

meaning to “interest of general public” and observed as follows:

(SCC p. 31, para 19)

“19. The expression ‘in the interest of general public’ is of

wide import comprehending public order, public health,

public security, morals, economic welfare of the community

and the objects mentioned in Part IV of the Constitution.”

xx xx xx

55. The SNDT Report also shows that only 17.40% of the bar girls

are from the State of Maharashtra. The bar owners have been

exploiting the girls by sharing the tips received and also

capitalising on their performance to serve liquor and improve the

sales and business. Again reliance is placed on the observations

made in PRAYASReport at p. 47 which is as under:

“The women working as either dancers or waiters were not

paid any salary, but were dependent on tips given by

customers in the bar, which varies from day to day and from

women to another. This money is often shared with the bar

owner as per a fixed ratio ranging from 30 to 60%.”

xx xx xx

59. It was next submitted that the High Court wrongly concluded

that the activity of young girls/women being introduced as bar

dancers is not res extra commercium. Such activity by the young

girls is a dehumanising process. In any event, trafficking the girls

29

into bar dancing completely lacks the element of conscious

selection of profession. An activity which has harmful effects on

the society cannot be classified as a profession or trade for

protection under Article 19(1)(g) of the Constitution. Such dances

which are obscene and immoral would have to be considered as

an activity which is res extra commercium. The High Court has

wrongly concluded otherwise. Reliance is also placed on the

observations made by this Court in State of Bombay v. R.M.D.

Chamarbaugwala [AIR 1957 SC 699] . In that case, it was

observed by this Court that activity of gambling could not be

raised to the status of trade, commerce or intercourse and to be

made subject-matter of a fundamental right guaranteed by Article

19(1)(g).

xx xx xx

72. The same principle was reiterated by this Court in State of

Bihar v. Bihar Distillery Ltd. [(1997) 2 SCC 453] in the following

words: (SCC p. 466, para 17)

“17. … The approach of the court, while examining the

challenge to the constitutionality of an enactment, is to start

with the presumption of constitutionality. The court should try

to sustain its validity to the extent possible. It should strike

down the enactment only when it is not possible to sustain it.

The court should not approach the enactment with a view to

pick holes or to search for defects of drafting, much less

inexactitude of language employed. Indeed, any such

defects of drafting should be ironed out as part of attempt to

sustain the validity/constitutionality of the enactment. After

all, an Act made by the legislature represents the will of the

people and that cannot be lightly interfered with. The

unconstitutionality must be plainly and clearly established

before an enactment is declared as void.”

xx xx xx

85. Mr Rohatgi submits that the impugned legislation has

achieved the opposite result. Instead of creating fresh job

opportunities for women it takes away whatever job opportunities

are already available to them. He emphasised that the ban also

has an adverse social impact. The loss of livelihood of bar

dancers has put them in a very precarious situation to earn the

livelihood. Mr Rohatgi submitted that the dancers merely imitate

the dance steps and movements of Hindi movie actresses. They

wear traditional clothes such as ghagra cholis, sarees and salwar

kameez. On the other hand, the actresses in movies wear

30

revealing clothes: shorts, swimming costumes and revealing

dresses. Reverting to the reliance placed by the appellants on the

PRAYAS Report and Shubhada Chaukar Report, Mr Rohatgi

submitted that both the reports are of no value, especially in the

case of PRAYAS Report which is based on interviews conducted

with only few girls. The SNDT Report actually indicates that there

is no organised racket that brings women to the dance bars. The

girls' interview, in fact, indicated that they came to the dance bars

through family, community, neighbours and street knowledge.

Therefore, according to Mr Rohatgi, the allegations with regard to

trafficking to the dance bars by middlemen are without any basis.

Most of the girls who performed dance are generally illiterate and

do not have any formal education. They also do not have any

training or skills in dancing. This clearly rendered them virtually

unemployable in any other job. He, therefore, submits that the

SNDT Report is contradictory to the PRAYAS Report. Thus, the

State had no reliable data on the basis of which the impugned

legislation was enacted.”

25) Adverting specifically to those provisions of the Act and the Rules

which have been challenged as unconstitutional, Mr. Bhushan submitted

that insofar as Section 2(8)(i) is concerned, the definition of ‘obscene

dance’ contained therein is totally vague. He argued that this definition of

‘obscene dance’ includes ‘a dance which is designed only to arouse the

prurient interest of the audience’, which was totally loose expression

incapable of any precise meaning.

26) It was submitted that such a definition was susceptible to various

perceptions depending upon the subjective opinion of the concerned

persons and, therefore, different persons may reach different

conclusions after seeing the same dance performance. According to Mr.

Bhushan, when obscene dance is made as an offence under the Act, a

vague definition of this term was anathema to the principles of

31

criminology and was opposed to the rule of law.

27) Another provision, validity whereof is questioned on the premise

that the same is arbitrary and violative of Article 14 of the Constitution, is

Section 6(4) of the Act. This provision bars the grant of licence under

the Act in respect of a place where licence for discotheque or orchestra

is granted. Conversely, it also prohibits grant of licence for discotheque

or orchestra where licence under this Act is granted. Simply put, the

purport behind this provision is to see that in respect of a particular place

either licence is granted for dance bars or for discotheque and orchestra

and there would not be a licence for a place, both for dance bars and

discotheque or orchestra, at the same time. It was submitted that there

was no rational behind such a provision based on intelligible differentia.

Reference was made to the judgment in M.P. AIT Permit Owners Assn.

and Another v. State of M.P.

2

, which was relied upon in the subsequent

judgment in Engineering Kamgar Union v. Electro Steels Castings

Ltd. and Another

3

wherein it was held as under:

"21. The Central Act and the State Act indisputably cover the

same field. The jurisdiction of the State Legislature to enact a law

by a parliamentary legislation is not impermissible. Subject to the

provisions contained in Article 254 of the Constitution of India,

both will operate in their respective fields. The constitutional

scheme in this behalf is absolutely clear and unambiguous. In this

case, this Court is not concerned with the conflicting legislations

operating in the same field by reason of enactments made by

Parliament and the State in exercise of their respective legislative

powers contained in List I and List II of the Seventh Schedule of

2 (2004) 1 SCC 320

3 (2004) 6 SCC 36

32

the Constitution of India but admittedly the field being the same, a

question would arise as regards the effect of one Act over the

other in the event it is found that there exists a conflict. For the

said purpose, it is not necessary that the conflict would be direct

only in a case wherein the provisions of one Act would have to be

disobeyed if the provisions of the other are followed. The conflict

may exist even where both the laws lead to different legal results.

xx xx xx

24. The judgments of this Court clearly lay down the law to the

effect that if two Acts produce two different legal results, a conflict

will arise.

28) He further submitted that for contravening the provisions of Section

6(4) of the Act, the punishment provided under Section 8(2) of the Act

was imprisonment for a term which may extend to three years or fine

which may extend to Rs.10 lakhs or both. This, according to him, was

impermissible inasmuch as such an act, namely, obscene dance, would

amount to obscenity which is made an offence under Section 294 of the

Indian Penal Code (IPC) and that offence is punishable with

imprisonment which may extend to three months. He, thus, argued that

such a provision was not only arbitrary and violative of Article 14, there

was a clear conflict between the central law (i.e. the IPC) and the State

Act (the impugned Act). According to him, in such an eventuality, it is the

central law which has to prevail and, therefore, Section 8(2) of the Act

needed to be struck down on this ground.

29) Adverting to the challenge in respect of Section 8(4) of the Act, he

submitted that this provision makes throwing or showering coins,

33

currency notes or any article or any thing which can be monetised on the

stage or handing over personally such things, etc. to a dancer is also

made an offence under this provision, which again suffers from the vice

of arbitrariness. He submitted that in the first instance such a prohibition

is only qua the dancers and not singers or waitresses. Contention was

that giving such things to a dancer only amounts to tipping her on

appreciation of her performance which was the same thing as

appreciating a singer for her performance or a waitress for her service

and there was absolutely nothing wrong about it and such an act cannot

be made an offence. It was, according to him, manifestly arbitrary and

violative of Article 14. The learned senior counsel relied upon the

following averments in Nikesh Tarachand Shah v. Union of India and

Another

4

:

"23. Insofar as “manifest arbitrariness” is concerned, it is

important to advert to the majority judgment of this Court in

Shayara Bano v. Union of India [Shayara Bano v. Union of India,

(2017) 9 SCC 1 : (2017) 4 SCC (Civ) 277] . The majority, in an

exhaustive review of case law under Article 14, which dealt with

legislation being struck down on the ground that it is manifestly

arbitrary, has observed: (SCC pp. 91-92 & 99, paras 87 & 101)

“87. The thread of reasonableness runs through the entire

fundamental rights chapter. What is manifestly arbitrary is

obviously unreasonable and being contrary to the rule of law,

would violate Article 14. Further, there is an apparent

contradiction in the three-Judge Bench decision in McDowell

[State of A.P. v. McDowell & Co., (1996) 3 SCC 709] when it

is said that a constitutional challenge can succeed on the

ground that a law is “disproportionate, excessive or

unreasonable”, yet such challenge would fail on the very

ground of the law being “unreasonable, unnecessary or

4 (2018) 11 SCC 1

34

unwarranted”. The arbitrariness doctrine when applied to

legislation obviously would not involve the latter challenge

but would only involve a law being disproportionate,

excessive or otherwise being manifestly unreasonable. All

the aforesaid grounds, therefore, do not seek to differentiate

between State action in its various forms, all of which are

interdicted if they fall foul of the fundamental rights

guaranteed to persons and citizens in Part III of the

Constitution.

xx xx xx

101. It will be noticed that a Constitution Bench of this Court

in Indian Express Newspapers (Bombay) (P) Ltd. v. Union of

India [Indian Express Newspapers (Bombay) (P) Ltd. v.

Union of India, (1985) 1 SCC 641 : 1985 SCC (Tax) 121]

stated that it was settled law that subordinate legislation can

be challenged on any of the grounds available for challenge

against plenary legislation. This being the case, there is no

rational distinction between the two types of legislation when

it comes to this ground of challenge under Article 14. The

test of manifest arbitrariness, therefore, as laid down in the

aforesaid judgments would apply to invalidate legislation as

well as subordinate legislation under Article 14. Manifest

arbitrariness, therefore, must be something done by the

legislature capriciously, irrationally and/or without adequate

determining principle. Also, when something is done which is

excessive and disproportionate, such legislation would be

manifestly arbitrary. We are, therefore, of the view that

arbitrariness in the sense of manifest arbitrariness as

pointed out by us above would apply to negate legislation as

well under Article 14.”

This view of the law by two learned Judges of this Court was

concurred with by Kurian, J. in para 5 of his judgment.

24. Article 21 is the Ark of the Covenant so far as the

Fundamental Rights Chapter of the Constitution is concerned. It

deals with nothing less sacrosanct than the rights of life and

personal liberty of the citizens of India and other persons. It is the

only article in the Fundamental Rights Chapter (along with Article

20) that cannot be suspended even in an emergency [see Article

359(1) of the Constitution]. At present, Article 21 is the repository

of a vast number of substantive and procedural rights post

Maneka Gandhi v. Union of India [Maneka Gandhi v. Union of

India, (1978) 1 SCC 248]. Thus, in Rajesh Kumar [Rajesh Kumar

v. State, (2011) 13 SCC 706 : (2012) 2 SCC (Cri) 836] at pp.

724-26, this Court held: (SCC paras 56-63)

35

“56. Article 21 as enacted in our Constitution reads as under:

‘21. Protection of life and personal liberty.—No person

shall be deprived of his life or personal liberty except

according to procedure established by law.’

57. But this Court in Bachan Singh [Bachan Singh v. State of

Punjab, (1980) 2 SCC 684 : 1980 SCC (Cri) 580] held that in

view of the expanded interpretation of Article 21 in Maneka

Gandhi [Maneka Gandhi v. Union of India, (1978) 1 SCC

248] , it should read as follows: (Bachan Singh case

[Bachan Singh v. State of Punjab, (1980) 2 SCC 684 : 1980

SCC (Cri) 580] , SCC p. 730, para 136)

‘136. … “No person shall be deprived of his life or personal

liberty except according to fair, just and reasonable

procedure established by valid law.”

In the converse positive form, the expanded article will read

as below:

“A person may be deprived of his life or personal liberty in

accordance with fair, just and reasonable procedure

established by valid law.” ’

58. This epoch-making decision in Maneka Gandhi [Maneka

Gandhi v. Union of India, (1978) 1 SCC 248] has

substantially infused the concept of due process in our

constitutional jurisprudence whenever the court has to deal

with a question affecting life and liberty of citizens or even a

person. Krishna Iyer, J. giving a concurring opinion in

Maneka Gandhi [Maneka Gandhi v. Union of India, (1978) 1

SCC 248] elaborated, in his inimitable style, the transition

from the phase of the rule of law to due process of law. The

relevant statement of law given by the learned Judge is

quoted below: (SCC p. 337, para 81)

‘81. … “Procedure established by law”, with its lethal

potentiality, will reduce life and liberty to a precarious

plaything if we do not ex necessitate import into those

weighty words an adjectival rule of law, civilised in its soul,

fair in its heart and fixing those imperatives of procedural

protection absent which the processual tail will wag the

substantive head. Can the sacred essence of the human

right to secure which the struggle for liberation, with “do or

die” patriotism, was launched be sapped by formalistic and

pharisaic prescriptions, regardless of essential standards?

36

An enacted apparition is a constitutional illusion. Processual

justice is writ patently on Article 21. It is too grave to be

circumvented by a black letter ritual processed through the

legislature.’

59. Immediately after the decision in Maneka Gandhi

[Maneka Gandhi v. Union of India, (1978) 1 SCC 248]

another Constitution Bench of this Court rendered decision

in Sunil Batra v. State (UT of Delhi) [Sunil Batra v. State (UT

of Delhi), (1978) 4 SCC 494 : 1979 SCC (Cri) 155]

specifically acknowledged that even though a clause like the

Eighth Amendment of the United States Constitution and

concept of “due process” of the American Constitution is not

enacted in our Constitution text, but after the decision of this

Court in Rustom Cavasjee Cooper [Rustom Cavasjee

Cooper v. Union of India, (1970) 1 SCC 248] and Maneka

Gandhi [Maneka Gandhi v. Union of India, (1978) 1 SCC

248] the consequences are the same. The Constitution

Bench of this Court in Sunil Batra [Sunil Batra v. State (UT of

Delhi), (1978) 4 SCC 494 : 1979 SCC (Cri) 155] speaking

through Krishna Iyer, J. held: (Sunil Batra case [Sunil Batra

v. State (UT of Delhi), (1978) 4 SCC 494 : 1979 SCC (Cri)

155] , SCC p. 518, para 52)

‘52. True, our Constitution has no “due process” clause or

the Eighth Amendment; but, in this branch of law, after

Cooper [Rustom Cavasjee Cooper v. Union of India, (1970)

1 SCC 248] and Maneka Gandhi [Maneka Gandhi v. Union

of India, (1978) 1 SCC 248] , the consequence is the same.’

60. The Eighth Amendment (1791) to the Constitution of the

United States virtually emanated from the English Bill of

Rights (1689). The text of the Eighth Amendment reads,

“excessive bail shall not be required, nor excessive fines

imposed, nor cruel and unusual punishments inflicted”. The

English Bill of Rights drafted a century ago postulates, “That

excessive bail ought not to be required, nor excessive fines

imposed, nor cruel and unusual punishments inflicted”.

61. Our Constitution does not have a similar provision but

after the decision of this Court in Maneka Gandhi case

[Maneka Gandhi v. Union of India, (1978) 1 SCC 248]

jurisprudentially the position is virtually the same and the

fundamental respect for human dignity underlying the Eighth

Amendment has been read into our jurisprudence.

62. Until the decision was rendered in Maneka Gandhi

[Maneka Gandhi v. Union of India, (1978) 1 SCC 248] ,

37

Article 21 was viewed by this Court as rarely embodying the

Diceyian concept of the rule of law that no one can be

deprived of his personal liberty by an executive action

unsupported by law. If there was a law which provided some

sort of a procedure it was enough to deprive a person of his

life or personal liberty. In this connection, if we refer to the

example given by S.R. Das, J. in his judgment in A.K.

Gopalan [A.K. Gopalan v. State of Madras, AIR 1950 SC 27 :

(1950) 51 Cri LJ 1383] that if the law provided the Bishop of

Rochester “be boiled in oil” it would be valid under Article 21.

But after the decision in Maneka Gandhi [Maneka Gandhi v.

Union of India, (1978) 1 SCC 248] which marks a watershed

in the development of constitutional law in our country, this

Court, for the first time, took the view that Article 21 affords

protection not only against the executive action but also

against the legislation which deprives a person of his life and

personal liberty unless the law for deprivation is reasonable,

just and fair. And it was held that the concept of

reasonableness runs like a golden thread through the entire

fabric of the Constitution and it is not enough for the law to

provide some semblance of a procedure. The procedure for

depriving a person of his life and personal liberty must be

eminently just, reasonable and fair and if challenged before

the court it is for the court to determine whether such

procedure is reasonable, just and fair and if the court finds

that it is not so, the court will strike down the same.

63. Therefore, “law” as interpreted under Article 21 by this

Court is more than mere “lex”. It implies a due process, both

procedurally and substantively.”

25. Given the parameters of judicial review of legislation laid down

in these judgments, we have to see whether Section 45 can pass

constitutional muster.”

His further submission relating to this provision was that it was

even violative of Article 19(1)(g) of the Constitution inasmuch as for

dancers, singers, waitresses, etc., tips are th major part of their earnings

which was sought to be taken away by this provision.

30) Attacking the validity of Rule 3 of the Rules, he submitted that

38

Condition No.2 contained in Part A of the Schedule attached to these

Rules is contrary to the judgment in Indian Hotel and Restaurants

Association (1). He also submitted that distance of 1 k.m. of such

dance bars from the educational and religious institutions, as stipulated

in Condition No.11 of Part A of the Schedule, was illogical and

impractical. According to him, it was, in fact, an impossible condition to

be fulfilled in a congested city like Mumbai where educational and

religious institutions existed within 1 k.m. from each and every building.

He pointed out that for the Bars under liquor Rules, distance prescribed

is 75 mts., which was reasonable and valid provision and could be

incorporated here as well.

31) Insofar as Condition No.2 contained in Part B of the Schedule is

concerned, it is challenged on the ground that under the guise of this

condition the respondent wanted that employment of the bar dancers in

the said bars becomes imperative. This was violative of Article 19(1)(g)

of the Constitution, both for the owners as well as for such women

dancers and waitresses, as it was taking away the freedom of these

performers to work on contract basis if they so wanted.

32) As far as Condition No.6 relating to giving of tips is concerned

(which goes along with Condition No. 11 of Part A), argument is that the

State cannot impose a condition that such an amount has to be

39

necessarily added in the bill.

33) Timings of the dance bars from 6:00 p.m. to 11:30 p.m. stipulated

in Condition No. 9 of Part B is challenged on the ground that it does not

serve any purpose. Moreover, discotheque or orchestra and liquor bars

are allowed to be open till 01:30 a.m.

34) Similarly, argued the petitioners, Condition No.12 which prohibits

serving alcoholic beverages in the dance bars is irrational.

35) Validity of Condition No.16 read with Rule 3(iii) is challenged on

the ground that such a condition is again vague in nature inasmuch as

the expression ‘good character’ and ‘criminal record in the past’ are not

capable of any precise definition. He submitted that till the time there is

no conviction, there cannot be any bar on the employment of a person.

Further, even if there is a conviction, the bar should be attached only in

those cases where conviction is for a serious offence.

36) Condition No.17 of Part B to the Schedule which prohibits any

modification or alteration in the premises without the permission of the

licensing authority is questioned as arbitrary. Attention of the Court was

drawn to the order dated March 02, 2016 passed in Writ Petition (Civil)

No. 793 of 2014, which reads as under:

"On the last occasion, the Court had noted 7 (seven) conditions

which had been taken exception to by Mr. Jayant Bhushan,

40

learned senior counsel appearing for the petitioners. The

exceptions relate to condition nos.1, 2, 5, 10, 12 and 15.

Condition no.1 reads as follows :

“1) This licence is valid for only one stage of 10 ft. x 12 ft.

in size in restaurant area as per approved plan of the

excise department for F.L.-III with non-transparent

partition between restaurant and permit room area.”

It is submitted by Ms. Pinky Anand, learned Additional

Solicitor General on the basis of the affidavit that as per the

approved plan of the Excise Department for permit rooms with

FL-III licence, there is always a necessity for providing a

non-transparent partition between the restaurant and the permit

room area. It is urged by her that the intention of the Excise

Department behind incorporation of the said condition is to keep

the permit room area separate from the restaurant area where

alcohol is not served. Be it noted, the said condition has been

modified to the following extent :

“This licence is valid for only one stage of 10 ft. x 12 ft.

size in restaurant area/permit room as per approved

plan of the Excise Department for F.L.-III with non

transparent partition between restaurant and permit

room area.”

The said condition is accepted by the petitioners and,

therefore, we shall not dwell upon the same.

As far as the condition no.2 is concerned, it reads as

follows:

“2) The stage should cover from all sides by a non

removable partition of 3 ft. height.”

In the affidavit filed by the State, the said condition has

been modified as follows :

“(2) There shall be a railing of 3 ft. height adjacent to

the dance stage. There should be distance of 5 ft.

between the railing and seats for the customers. In

respect of dance bars which have secured licenses

earlier, provisions mentioned above be made binding. It

should be made binding on dance bars seeking new

licenses to have railing of 3 ft. height adjacent to the

stage and leaving a distance of 5 ft between the railing

and sitting arrangement for customers.”

41

Mr. Bhushan, learned senior counsel would submit that

regard being had to the suggestions noted in State of

Maharashtra & Anr. vs. Indian Hotel and Restaurants

Association & Ors. [(2013) 8 SCC 519, the railing of 3 ft. height

can be put in praesenti subject to the further arguments to be

canvassed at a later stage but there cannot be non-removable

partition. Having heard learned counsel for the parties, we accept

the submission of Mr. Bhushan, learned senior counsel and

direct that there should be railing of 3 ft. height and not the

non-removable partition. The railing is meant for creating

barrier between the performers and the audience.

Condition No.5 is to the following effect :

“5) The licensee is permitted to keep only 04

dancers/artists to remain present on the permitted

stage.”

It is submitted by Mr. Bhushan that he has no objection to

the said condition but it may be clarified that other artists can

remain present in the premises to which there is no objection by

learned Additional Solicitor General. Hence, we clarify that four

dancers can perform on the stage at one time but there can be

other artists at other places inside the premises.

Condition no.10 reads as follows :

“10) The Licensee shall ensure that the character and

antecedents of all employees is verified by the police.”

Though there is no suggestion in the affidavit as regards the

said condition, it is submitted by Mr. Bhushan, learned senior

counsel, that it has to be restricted to criminal antecedents. We

agree with the same. Any employee who is engaged, his/her

criminal antecedents are to be verified. It is imperative.

Condition No.11 reads as follows :

“11) The Licensee shall not allow any addition or

alternation to be made to the premises except without

the written permission of the Competent Authority i.e.

DCP (HQ-I) for Mumbai or concerned DCP/SP for other

areas.”

The aforesaid condition is modified to the extent that

the premises shall not be altered/modified without the

permission of the competent authority under the statute.

42

However, it is hereby directed that if there will be any

grievance on this score, the parties are at liberty to approach

this Court.

Condition no. 12 reads as follows :

“12) The Licensee shall ensure that no concealed cavity

or a room is created within the premises in order to

conceal performers/staff.”

Mr. Bhushan, learned senior counsel submitted that he has

no objection to the said condition but there should be a room

which can be utilised as a green room. We so direct. Be it

clarified, green room means green room in the manner in which it

is understood in the classical sense.

Condition no. 15 on which the parties are at real cavil reads

as follows :

“15)The Licensee shall ensure that adequate number of

CCTV cameras which will live feed continuously to police

control room be installed to cover the entire premises

which will record the entire daily performance and the

same will be monitored by a specially appointed person

on a monitor/display. The daily recording of performance

of last 30 days would preserved and will be made

available to any competent authority as and when

required for viewing.”

Having heard learned counsel for the parties, Dr. Rajeev

Dhawan, learned senior counsel, who sought permission to file an

application for intervention and Mr. Sandeep Deshmukh, learned

counsel for the 5th respondent, we are inclined to modify the said

condition to the extent that CCTV cameras shall be fixed at the

entrance of the premises in question but shall not be fixed in

the restaurant or the permit area or the performance area.

As we have clarified the conditions, the modified conditions

along with conditions on which there is no cavil shall be complied

with within three days and the respondents shall issue the

licences within ten days therefrom. We are sure, the authorities

shall act in accordance with the command of this Court and not

venture to deviate.

Let the matter be listed after two weeks.

Liberty to mention.”

43

37) Condition No.20 was also challenged on the same ground referring

to the same order dated March 02, 2016.

38) In addition, it was argued that requirement for having CCTV

cameras at such places will have chilling effect, which was also violative

of the right to privacy that is now declared as a fundamental right in K.S.

Puttaswamy and Another v. Union of India and Others

5

.

39) Mr. Nikhil Nayyar, learned counsel appearing for the writ petitioner

in Writ Petition (Civil) No. 119 of 2017, submitted that the petitioner

Union, namely, Bharatiya Bar Girls Union comprises of women artists

and talented professionals (collectively to be called as ‘women

performers’) working in varied roles such as dancers, singers or

waitresses in bars, restaurants, beer rooms, etc. (collectively referred to

as ‘dance bars’). It has 5000 members who were working in such

establishments in the State of Maharashtra alone. However, after the

imposition of ban for a prolonged period, which has resulted in rendering

these women performers unemployed, the membership has shrunk to

110 women performers. He submitted that many have sought

alternative employment and even migrated to other parts of the country

and many are living under the conditions of extreme penury as they are

facing unemployment. He argued that the members of the petitioner

union have voluntarily embraced professional dancing at dance bars (i)

5 (2017) 10 SCC 1

44

entirely out of free will and choice; (ii) to earn livelihood; and (iii)

personal autonomy and dignity. The existing literature and empirical

studies have identified the women’s desire to lead an independent and

self-sustaining life as the primary motivation to work in dance bars. For

many, the opportunity to work in dance bars have allowed them to

break-away from stigmatic hereditary or caste profession. Some of the

key findings of these studies are as follows:

(i)Nearly 82.6% of women performers (out of the sample size of 500)

surveyed in Mumbai were migrants, and forced to leave their homes due

to ‘poverty and destitution’ and for ‘seeking a better life for themselves

and their dependents’

6

.

(ii)Another study found that 42% of women dancers (out of 800) were

the only breadwinners in their family. Most of them lacked basic

education or technical skills. Some of them were previously engaged in

sex work, but turned towards dance bars to lead a dignified life with

safer working conditions

7

.

(iii)Another ethnographic study has shown that a vast majority of

women performers worked in exploitative or constricted environment

(viz., rag pickers, domestic helpers, etc.,). Many performers also

belonged to marginalized and traditional dancing communities (viz.,

6 See Feminist Contributions from the Margins: Shifting Conceptions of Work and

Performance of the Bar Dancers of Mumbai XLV Econ. & Pol. Weekly (48) 2010

7 See RCWS (SNDT University, Mumbai), ‘Working Women in Mumbai Bars: Truths

behind the controversy’ (Jul’ 2005); RCWS (SNDT University, Mumbai), ‘After the Ban –

Women Working in Dance Bars’ (Dec’ 2006)

45

Bedia, Deredar, Kanjhar, Nat, Rajnat, etc.,) and other societies that have

had a history of ‘alternate’ sexual morality

8

.

40) As with other professional artistes, and until the year 2004, the

women performers have had complete freedom to choose which bars or

restaurants to perform; day, time or duration of their performance; and

had the bargaining capacity to negotiate remuneration with bar owners.

In other words, the women performers were never the ‘employees’ of

such establishments – either by virtue of a contract or under a statutory

provision. As a matter of fact, many women performers do not expect

any or adequate compensation from bar owners as it has been

customary for performers to accept tips or rewards from patrons offered

as a token of appreciation for their performance. This decades’ old

practice is akin to customary practices of Mujras, Lavani (traditional

Marathi song and dance) or Tamasha (traditional Marathi theatre) who

earn their living in the form of Bakshisi offered by audiences. The said

practice is still widely prevalent across the country.

41) Adverting to the secondary effects and colonial-era stigma, Mr.

Nayyar pointed out that the dramatic performances in dance bars often

imitate Bollywood performances or the ‘mainstream’ culture – both in

form and character. However, the State Government has viewed dance

8 See Dalwai, Sameena, ‘Performing caste: the ban on bar dancing in Mumbai’ Keele

University (2012)

46

bars an innately vulgar, undesirable, and as threatening the moral fabric

of the society. The State’s perception is premised on popular beliefs and

public sentiment associated with art and entertainment.

42) The reason for the oppressive and moralistic attitude against

dance bars takes root from a patriarchal view that women “engaging in

any kind of work or profession outside the home or domestic sphere’

carried ‘low societal status’. Anna Morcom, a noted scholar, argues that

the societal views on ‘bar girls’ bear close resemblance to oppressive

treatment meted out to traditional dancing communities (Devadasis,

courtesans, nautch, etc.,) during British-era

9

.

43) Insofar as challenge to the Act and Rules is concerned, this

petition challenges some of the provisions which are also the subject

matter of challenge in Writ Petition (Civil) No. 576 of 2016, on which we

have noted the arguments of Mr. Jayant Bhushan, learned senior

counsel. Adopting those arguments, Mr. Nayyar also made some

additional submissions which are as under:

In the first place, the learned counsel took support of the legal

principles settled in the judgment of this Court in Indian Hotel and

Restaurants Association (1). He argued that in that case the Court

considered the rational offered by the State Government threadbare and

9 Anna Morcom, Courtesans, Bar Girls and Dancing Boys: Illicit Worlds of Indian

Dance (Hachette India, 2014)

47

found no basis or justification for imposition of prohibition.

44) He submitted that the present Act and rules were nothing but old

wine in a new bottle with same kind of provisions which have already

been struck down in Indian Hotel and Restaurants Association (1). In

addition, the argument of Mr. Nayyar was that the moral anxiety and the

reasons advanced by the State Government for introducing the

legislation are entirely irrational and without demonstrable proof or

evidence. Illustratively:

(I) Social Profile of Bar girls: It has been claimed that bar girls are

usually minors or victims of trafficking or prostitution and other forms of

flesh trade. However, the State Government has failed to produce any

material – be it crime statistics or any other studies – in support. On the

other hand, few available historical literature and research studies on

bar dances suggest a diagonally opposite point of view. A study

conducted by SNDT University, for instance, found that many women

performers took up dancing to rehabilitate themselves from exploitative

flesh trade. All the above social factors clearly suggest that the bar girls

have voluntarily embraced dance bars to live with dignity and earn their

livelihood. Moreover, the available literature further noted dance bars

have had positive externalities on the women performers as it opened

newer opportunities and the option to leave exploitative sex work if they

chose.

48

(ii) Non-obscene performances: In any event, this Court in Indian

Hotel and Restaurants Association (1) and several other High Courts

previously had categorically held that the performances in dance bars

cannot be considered as ‘obscene’. The Bombay High Court in State of

Maharashtra v. Joyce Zee alias Temiko

10

, dealing with cabaret shows,

held as under:

"An adult person, who pays and attends a cabaret show in a hotel

runs the risk of being annoyed by the obscenity or being

entertained by the very obscenities according to his taste. Even

assuming that such a hotel where anyone can buy tickets is

concerned to be a public place, it cannot be held that the

obscenity and annoyance which are punishable under S.294

of IPC are caused without the consent, express or implied, of

such adult person. Such a person cannot complain in a criminal

court of annoyance.”

(emphasis added)

This proposition has been reiterated and followed in Sadhna v.

State

11

and Narendra H. Khurana v. Commissioner of Police

12

.

Thus, it is evident that the impugned Act and Rules perpetuate a myth

that dance bars pose any danger to law and order or cause disturbance

to peace and tranquility.

(iii) Lack of Reliable Data: It is pertinent to note that there has been a

complete prohibition on dance bars since 2005 across the State of

Maharashtra. Therefore, the data purportedly relied upon by the State

Government is not only negligible, if any, but also outdated. Be that as it

may, the very reasons proclaimed by the State Government currently

10(1973) ILR 1299 (Bom)

11(1981) 19 DLT 210

12(2004) 2 Mah LJ 72

49

have been considered and rejected by this Court in Indian Hotel and

Restaurants Association (1) for the lack of cogent evidence.

Therefore, the belief of the State Government that the working women in

dance bars are involved in immoral activities such as prostitution, or that

minors are being employed, are entirely baseless and irrational.

(iv) Conditions of work: The concerns of the State Government that

women dancers are subjected to unsafe and exploitative working

conditions is entirely false. Various studies indicate that many bar girls

felt ‘greater security in the bars due to the support network among the

dancers as well as the protection provided by the owners’. It was further

noted that the bar owners, on the demands made by bar girls, provides

taxis and auto rickshaws for women travelling late at night. Although bar

girls worked under the constant gaze of bar owners, they are neither

contractually employed nor subservient to them. Few other performers

have also expressed complete freedom to shift from one dance bar to

another at their will. Therefore, the claims that the women performers

are working under unsafe or exploitative conditions are hugely

exaggerated. Having said that, there is certainly a grave necessity to

improve working conditions of bar girls. However, the same can be

achieved by strengthening the rights of thees women and organisations

such as the petitioner-Union without the intervention from state

apparatus.

50

(v) Social Vulnerabilities: The prolonged ban on dance bars has had

adverse effect on bar girls and women entertainers. After the ban, the

RCWS & FAOW study pointed out that income of almost all women was

reduced to less than 50% of their original earnings, and at least 1/4th of

the women found their income slashed by 90% of their original earnings.

At least 57.5% of the women reported having used all their savings in

the form of jewellery, cash or property and at least 26% of these women

have been forced to take additional loans, ranging between the amounts

of couple of thousands to lakhs. The study further pointed that the

access to health care and education of dancers and their families has

reduced drastically. Moreover, the lack of social security has resulted in

sexual harassment and also driven women to take up exploitative sex

work. In this backdrop, and contrary to the stated objects, the increased

interference by the State Government could further jeopardise the

livelihood of women. This Court in Indian Hotel and Restaurants

Association (1) also expressed anguish as ban on dance bars ‘has

proved to be totally counter-productive’ as many women performers

were ‘compelled to take up prostitution out of necessity for maintenance

of their families’.

(vi) Res Extra Commercium: The State Government contended that the

dancing – when mixed with alcohol – has the tendency to result in

unwelcomed or undesirable outcome. However, this Court in Indian

51

Hotel and Restaurants Association (1) dealt with similar argument and

observed that ‘we are not impressed with any of these submissions’ as

the submission was based on ‘unfounded presumption that women are

being/were trafficked in the bars’.

According to him, the impugned Act has been enacted as a

retaliatory measure to disenfranchise women from performing at dance

bars at any cost. It is contended that the legislative declaration of facts

and beliefs, as noted above, are patently false and entirely irrational and

devoid of any material.

45) He further submitted that onus was on the State to justify fairness

and reasonableness which is the principle of law laid down in the case of

Ram Krishna Dalmia v. Justice S.R. Tendolkar & Ors.

13

, State of

Maharashtra & Anr. v. Basantibai Mohanlal Khetan & Ors.

14

and M/s

Laxmi Khandsari & Ors. v. State of U.P. & Ors.

15

.

According to him, the State has not discharged this onus.

46) Mr. Nayyar also made detailed submissions on the standards of

‘obscenity’ which prevail in this country as per the parameters laid down

in various judgments and the development of law on this subject. In this

hue, he also argued that public policy or general public interest cannot

be valid grounds to restrict freedom of speech under Article 19(1)(a) of

13(1959) SCR 279

14(1986) 2 SCC 516

15(1981) 2 SCC 600

52

the Constitution. Neither majoritarian or societal notions formed the

basis to restrict such a fundamental right. According to him, on the

contrary, constitutional values of personal autonomy and individual

choices which have been held to be the facets of right to privacy, giving

it the status of fundamental rights, had to be respected. His plea was

that the impugned legislation and rules violate such rights as well.

47) Mr. Nayyar also, like Mr. Jayant Bhushan, touched upon specific

provisions of the Act and the Rules. On Section 2(8) of the Act, his

submission was that it is a provision which was utterly vague and

creates a chilling effect; puts restrictions on dance which are excessive

and disproportionate; and suffers from rigidity, overbreadth and manifest

arbitrariness. Insofar as Section 8(4) of the Act, which prohibits offering

tips by the customers to the performers is concerned, submission of Mr.

Nayyar is that it is manifestly arbitrary and unreasonable inasmuch as

this provision infuses criminalisation into and otherwise benign or

harmless act and was contrary to well-recognised customary practice

thereby suffering from manifest arbitrariness.

48) The learned counsel also laid attack on the legality of some of the

licence conditions. His submission in this behalf was that the Grievance

Redressal Committee constituted under Section 12 of the impugned Act

is highly inadequate and disproportionate. The composition of the

53

Committee, tasked with the duty to ensure proper conditions of service

of women, does not contain any participation or representation of bar

dancers in any manner. The composition of the Committee, as provided

by Rule 10, is restricted to Group ‘A’ officers. As it is the workplace of

these women, it is imperative that they must be represented when an

issue regarding their working condition is being decided.

49) Mr. Nayyar termed condition B(2) as disproportionate, excessive

and ultra vires the intent and object of the impugned Act. The provisions

adversely affect women dancers by (i) restricting their freedom to move

from one bar to another at their will, if the work conditions or the returns

are not suitable; (ii) prohibit them from monetizing dances other than by

way of receiving salary or shared tips. More importantly, the State

Government has failed to show any compelling public interest to curtail

the choices of women performers.

50) Conditions B(7) and B(8) are questioned on the premise that

women dancers are indirectly prohibited from receiving tips, rewards or

remuneration offered by their patrons, is unreasonable, excessive,

manifestly arbitrary and violates Articles 14 and 19 of the Constitution.

The suggestion from the State Government that tips could be added to

the bill or handed over to waiters is irrational.

51) Condition B(9) wherein the dance performances are restricted to

54

6:00 pm to 11:30 pm is challenged as unreasonable and manifestly

arbitrary. It is irrational and manifestly arbitrary to prohibit dances after

11:30 pm, when the establishments can be open until 01:30 am (next

day) or 12:30 am (next day), as the case may be

16

.

52) According to him, condition B(12) wherein the bar owners are

prohibited from serving of any alcoholic beverage at areas where

dances are staged is disproportionate and manifestly arbitrary. The State

Government has failed to provide any cogent material or demonstrate

any reasonable basis which warrants interference of this nature. As

such, the restriction is excessive and disproportionate consider other

licence conditions (distance, railing, green room, age restrictions, etc.,)

to prevent any untoward incident.

53) Validity of Section B(20) wherein the mandate to install CCTV

cameras to maintain complete surveillance and recording of activities in

such places is questioned as excessive, causes unwarranted invasion of

privacy and violative of Articles 19(1)(a) and 21. In support, he referred

to para 247(3) of K.S. Puttaswamy and Another wherein this Court

examined the concept of ‘unpopular privacy’ - of which two facets are

particular relevant – viz. “(c) decisional privacy which protects the right

of citizens to make intimate choices about their rights from intrusion by

16See Notification (bearing MSA. 07/2016/C.R. 218/Lab-10) issued by the State

Government also placed on record before this Court in Writ Petition (Civil) No. 576 of 2016.

55

the State; (d) proprietary privacy which relates to the protection of one’s

reputation.” Given the societal stigma associated with dance bars, the

monitoring, recording, storage and retention of dance performances

causes unwarranted invasion of privacy and would even subject women

performers to threat and blackmail. If the concerns are security, it can

be adequately met having at the entrance. Hence, the complete

surveillance of activities inside the premises is excessive and

disproportionate.

54) Condition B(23) wherein the dance performances that maybe

“expressive of any kind of obscenity, in any manner, even remotely” are

prohibited is labelled by Mr. Nayyar as highly vague, excessive and

creates a chilling effect on dancers.

55) Mr. Nayyar also supported his aforesaid arguments by citing

various judgments which shall be taken note of and discussed at a later

stage.

56) Rebuttal to the aforesaid arguments was given by Mr. Naphade,

learned senior advocate, who appeared for the State of Maharashtra

and supported by Ms. Pinky Anand, learned ASG who represented

Union of India.

57) Mr. Naphade opened his argument with the submission that

56

arbitrariness or unreasonableness are value judgments and any

legislation on the aforesaid parameters is to be judged keeping in mind

the ‘context’ in which such a legislation is passed. Adverting to the

context of the impugned Act, he referred to the preamble of the Act

which stipulates as under:

"An Act to provide for prohibition of obscene dance in hotels,

restaurants, bar rooms and other establishments and to improve

the conditions of work, protect the dignity and safety of women in

such places with a view to prevent their exploitation.”

58) From the above, the learned senior counsel pointed out that the

Act sought to achieve the following objectives:

(a)prohibit obscene dance in hotels, restaurants, bar rooms and other

establishments;

(b)improve the conditions of work of women dancers and other

women working therein; and

(c)protect the dignity as well as safety of such women.

59) He emphasised that moral structure of the Act flows from the

aforesaid preamble. According to him, it could not be disputed by

anybody, nor was it done by the petitioners, that the aforesaid objectives

were lawful and in larger public interest, particularly in the interest of

women working at such places. Proceeding on that basis, Mr. Naphade

submitted that insofar as controlling the activity through licensing is

concerned, the same is accepted by the petitioners as well. Section 3 of

57

the Act which mandates obtaining a licence for starting a hotel,

restaurant, bar room or any other place where dances are staged, has

not been challenged. This is core of the Act. Further, there is no

challenge to Section 14 which gives power to the State Government to

make rules in furtherance of the objectives i.e. to carry out the purpose

of the Act. It was also not the case of the petitioners that the impugned

Act or Rules framed thereunder were ultra vires and not within the

competence of the State legislature insofar as the Act is concerned or

the State Government insofar as the Rules are concerned. In addition to

Section 3 of the Act dealing with the licensing requirement, he referred

to Section 6 of the Act which deals with eligibility criteria for grant of such

licenses and submitted that the idea was to have stringent conditions to

achieve the purpose behind the Act.

60) With this introductory remarks, Mr. Naphade dealt with individual

provisions of the Act and the Rules in the following manner:

Section 2(8) of the Act which defines ‘obscene dance’ was

defended by arguing that it is not vague or contains imprecise definition

as it includes a dance which is aimed at arousing the ‘prurient interest’ of

the audience and where that is the only purpose behind a dance. He

argued that the expression ‘prurient interest’ has a definite connotation

in dictionary and this expression finds presence in Section 292 of the

IPC as well which makes obscenity as an offence. Therefore, argued

58

the learned senior counsel, it confirms to judicially manageable

standards. Further submission in this behalf was that, no doubt,

standards of morality have changed over a period of time, however, the

moot question is, where to draw the line. This has to be left to the

legislature. In the present case, legislature in its wisdom has considered

particular types of dances as obscene which in the wisdom of legislature

is the reasonable standard of obscenity. He also argued that the very

test of “reasonableness” is fluid and, therefore, it is situation centric.

Since, the Act aims at prohibiting obscene dance, the standard of

obscenity has to be looked into from that perspective in mind. He relied

upon the judgment in the case of Ranjit D. Udeshi v. State of

Maharashtra

17

where the term ‘obscene’ has been construed by the

Court in the following manner:

"8. Speaking in terms of the Constitution it can hardly be claimed

that obscenity which is offensive to modesty or decency is within

the constitutional protection given to free speech or expression,

because the article dealing with the right itself excludes it. That

cherished right on which our democracy rests is meant for the

expression of free opinions to change political or social conditions

or for the advancement of human knowledge. This freedom is

subject to reasonable restrictions which may be thought

necessary in the interest of the general public and one such is the

interest of public decency and morality. Section 292 of the Indian

Penal Code manifestly embodies such a restriction because the

law against obscenity, of course, correctly understood and

applied, seeks no more than to promote public decency and

morality. The word obscenity is really not vague because it is a

word which is well understood even if persons differ in their

attitude to what is obscene and what is not. Lawrence

thought James Joyce's Ulysees to be an obscene book deserving

17(1965) 1 SCR 65

59

suppression but it was legalised and he considered Jane Eyre to

be pornographic but very few people will agree with him.

9. The former he thought so because it dealt with the excretory

functions and the latter because it dealt with sex repression. (See

Sex, Literaturet Censorship pp. 26, 201). Condemnation of

obscenity depends as much upon the mores of the people as

upon the individual. It is always a question of degree or as the

lawyers are accustomed to say, of where the line is to be drawn. It

is, however, clear that obscenity by itself has extremely poor value

in the propagation of ideas, opinions and informations of public

interest or profit. When there is propagation of ideas, opinions and

photographs collected in book form without the medical text would

may become different because then the interest of society may tilt

the scales in favour of free speech and expression. It is thus that

books on medical science with intimate illustrations and

photographs, though in a sense immodest, are not considered to

be obscene but the same illustrations and photographs collected

in book form without the medical text would certainly be

considered to be obscene. Section 292 of the Indian Penal Code

deals with obscenity in this sense and cannot thus be said to be

invalid in view of the second clause of Article 19. The next

question is when can an object be said to be obscene?

xx xx xx

28. This is where the law comes in. The law seeks to protect not

those who can protect themselves but those whose prurient minds

take delight and secret sexual pleasure from erotic writings. No

doubt this is treating with sex by an artist and hence there is some

poetry even in the ugliness of sex. But as Judge Hand said

obscenity is a function of many variables. If by a series of

descriptions of sexual encounters described in language which

cannot be more candid, some social good might result to us there

would be room for considering the book. But there is no other

attraction in the book. As, J.B. Priestley said, “Very foolishly he

tried to philosophize upon instead of merely describing these

orgiastic impulses: he is the poet of a world in rut, and lately he

has become its prophet, with unfortunate results in his fiction.

[The English Novel, p. 142 (Nelson)]. The expurgated copy is

available but the people who would buy the un-expurgated copy

do not care for it. Perhaps the reason is as was summed up by

Middleton Murray:

“Regarded objectively, it is a wearisome and oppressive

book; the work of a weary and hopeless man. It is

remarkable, indeed notorious for its deliberate use or

unprintable words.”

60

“The whole book really consists of detailed descriptions of

their sexual fulfilment. They are not offensive, sometimes

very beautiful, but on the whole strangely wearisome. The

sexual atmosphere is suffocating. Beyond this sexual

atmosphere there is nothing, nothing,” [Son of Women

(Jonathan Cape)].

No doubt Murray says that in a very little while and on repeated

readings the mind becomes accustomed to them but he says that

the value of the book then diminishes and it leaves no permanent

impression. The poetry and music which Lawrence attempted to

put into sex apparently cannot sustain it long and without them the

book is nothing. The promptings of the unconscious particularly in

the region of sex is suggested as the message in the book. But it

is not easy for the ordinary reader to find it. The Machine Age and

its impact on social life which is its secondary theme does not

interest the reader for whose protection, as we said, the law has

been framed.”

61) Mr. Naphade submitted that this position has not undergone any

change by the judgments of this Court rendered thereafter. Thus, the

test to be applied is as to whether a particular dance performance has

tendency to deprave and corrupt by immoral influences. According to

him, in a given case, this test/standard can always be applied by the

Court to determine whether a particular dance performance is obscene

or not. Mr. Naphade also relied upon the judgment in the case of

Pawan Kumar v. State of Haryana & Anr.

18

where the expression

‘moral turpitude’ is defined by judiciary fixing standards of morality by

linking it with obscenity and it comes from the societal norms and

thinking about the same, which is highlighted in the following passage

from that judgment:

18(1996) 4 SCC 17

61

"12. “Moral turpitude” is an expression which is used in legal as

also societal parlance to describe conduct which is inherently

base, vile, depraved or having any connection showing depravity.

The Government of Haryana while considering the question of

rehabilitation of ex-convicts took a policy decision on 2-2-1973

(Annexure E in the Paper-book), accepting the recommendations

of the Government of India, that ex-convicts who were convicted

for offences involving moral turpitude should not however be

taken in government service. A list of offences which were

considered involving moral turpitude was prepared for information

and guidance in that connection. Significantly Section 294 IPC is

not found enlisted in the list of offences constituting moral

turpitude. Later, on further consideration, the Government of

Haryana on 17/26-3-1975 explained the policy decision of

2-2-1973 and decided to modify the earlier decision by

streamlining determination of moral turpitude as follows:

“… The following terms should ordinarily be applied in

judging whether a certain offence involves moral turpitude or

not;

(1) whether the act leading to a conviction was such as

could shock the moral conscience of society in general.

(2) whether the motive which led to the act was a base one.

(3) whether on account of the act having been committed the

perpetrator could be considered to be of a depraved

character or a person who was to be looked down upon by

the society.

Decision in each case will, however, depend on the

circumstances of the case and the competent authority has

to exercise its discretion while taking a decision in

accordance with the above-mentioned principles. A list of

offences which involve moral turpitude is enclosed for your

information and guidance. This list, however, cannot be said

to be exhaustive and there might be offences which are not

included in it but which in certain situations and

circumstances may involve moral turpitude.”

Section 294 IPC still remains out of the list. Thus the conviction of

the appellant under Section 294 IPC on its own would not involve

moral turpitude depriving him of the opportunity to serve the State

unless the facts and circumstances, which led to the conviction,

met the requirements of the policy decision above-quoted.”

62

62) Mr. Naphade also banked upon the following discussion in

Director General, Directorate General of Doordarshan & Ors. v.

Anand Patwardhan & Anr.

19

:

"22. One of the most controversial issues is balancing the need to

protect society against the potential harm that may flow from

obscene material, and the need to ensure respect for freedom of

expression and to preserve a free flow of information and ideas.

The Constitution guarantees freedom of expression but in Article

19(2) it also makes it clear that the State may impose reasonable

restriction in the interest of public decency and morality.

23. The crucial question therefore, is, “what is obscenity?” The law

relating to obscenity is laid down in Section 292 of the Penal

Code, which came about by Act 36 of 1969.

24. Under the present Section 292 and Section 293 of the Penal

Code, there is a danger of publication meant for public good or for

bona fide purpose of science, literature, art or any other branch of

learning being declared as obscene literature as there is no

specific provision in the Act for exempting them from operations of

those sections.

25. The present provision is so vague that it becomes difficult to

apply it. The purposeful omission of the definition of obscenity has

led to attack of Section 292 of the Penal Code as being too vague

to qualify as a penal provision. It is quite unclear what the

provisions mean. This unacceptably large “grey area”, common in

laws restricting sexual material, would appear to result not from a

lack of capacity or effort on the part of drafters or legislators.

26. The Penal Code on obscenity grew out of the English law,

which made the court the guardian of public morals. It is important

that where bodies exercise discretion, which may interfere in the

enjoyment of constitutional rights, that discretion must be subject

to adequate law. The effect of provisions granting broad

discretionary regulatory powers is unforeseeable and they are

open to arbitrary abuse.

27. In Samaresh Bose v. Amal Mitra [(1985) 4 SCC 289 : 1985

SCC (Cri) 523] it was observed by this Court: (SCC p. 314, para

29)

“The concept of obscenity is moulded to a very great extent

by the social outlook of the people who are generally

19(2006) 8 SCC 433

63

expected to read the book. It is beyond dispute that the

concept of obscenity usually differs from country to country

depending on the standards of morality of contemporary

society in different countries. In our opinion, in judging the

question of obscenity, the judge in the first place should try

to place himself in the position of the author and from the

viewpoint of the author the judge should try to understand

what is it that the author seeks to convey and whether what

the author conveys has any literary and artistic value. The

judge should thereafter place himself in the position of a

reader of every age group in whose hands the book is likely

to fall and should try to appreciate what kind of possible

influence the book is likely to have in the minds of the

readers. A judge should thereafter apply his judicial mind

dispassionately to decide whether the book in question can

be said to be obscene within the meaning of Section 292

IPC by an objective assessment of the book as a whole and

also of the passages complained of as obscene separately.”

28. This is one of the few liberal judgments the courts have given.

The point to worry about is the power given to the Judge to decide

what he/she thinks is obscene. This essentially deposits on the

Supreme Court of India, the responsibility to define obscenity and

classify matters coming on media as obscene or otherwise. This

Court has time and again adopted the test of obscenity laid down

by Cockburn, C.J. The test of obscenity is, whether the tendency

of the matter charged as obscenity is to deprave and corrupt

those whose minds are open to such immoral influences, and in

whose hands a publication in media of this sort may fall.

xx xx xx

37. In yet another case of Ramesh v. Union of India [(1988) 1

SCC 668 : 1988 SCC (Cri) 266] this Court has observed that:

(SCC p. 676, para 13)

“… that the effect of the words must be judged from the

standards of reasonable, strong-minded, firm and

courageous men, and not those of weak and vacillating

minds, nor of those who scent danger in every hostile point

of view. This in our opinion, is the correct approach in

judging the effect of exhibition of a film or of reading a book.

It is the standard of ordinary reasonable man or as they say

in English law ‘the man on the top of Clapham omnibus’.”

63) Another judgment, sustenance wherefrom was drawn by the

64

learned senior counsel is Ajay Goswami v. Union of India & Ors.

20

wherein again ‘norms of the society’ test was applied by the Court in the

following manner:

"67. In judging as to whether a particular work is obscene, regard

must be had to contemporary mores and national standards.

While the Supreme Court in India held Lady Chatterley's Lover to

be obscene, in England the jury acquitted the publishers finding

that the publication did not fall foul of the obscenity test. This was

heralded as a turning point in the fight for literary freedom in UK.

Perhaps “community mores and standards” played a part in the

Indian Supreme Court taking a different view from the English jury.

The test has become somewhat outdated in the context of the

internet age which has broken down traditional barriers and made

publications from across the globe available with the click of a

mouse.

xx xx xx

70. In S. Rangarajan v. P. Jagjivan Ram [(1989) 2 SCC 574] ,

while interpreting Article 19(2) this Court borrowed from the

American test of clear and present danger and observed: (SCC

pp. 595-96, para 45)

“[The] commitment to freedom of expression demands that it

cannot be suppressed unless the situations created by

allowing the freedom are pressing and the community

interest is endangered. The anticipated danger should not

be remote, conjectural or far-fetched. It should have

proximate and direct nexus with the expression. The

expression of thought should be intrinsically dangerous to

the public interest. [In other words, the expression should be

inseparably] like the equivalent of a ‘spark in a power keg’.”

71. The test for judging a work should be that of an ordinary man

of common sense and prudence and not an “out of the ordinary or

hypersensitive man”. As Hidayatullah, C.J. remarked in K.A.

Abbas [K.A. Abbas v. Union of India, (1970) 2 SCC 780] : (SCC p.

802, para 49)

“If the depraved begins to see in these things more than

what an average person would, in much the same way, as it

is wrongly said, a Frenchman sees a woman's legs in

everything, it cannot be helped.”

20(2007) 1 SCC 143

65

xx xx xx

75. The definition of obscenity differs from culture to culture,

between communities within a single culture, and also between

individuals within those communities. Many cultures have

produced laws to define what is considered to be obscene, and

censorship is often used to try to suppress or control materials

that are obscene under these definitions.

76. The term obscenity is most often used in a legal context to

describe expressions (words, images, actions) that offend the

prevalent sexual morality. On the other hand, the Constitution of

India guarantees the right to freedom of speech and expression to

every citizen. This right will encompass an individual's take on any

issue. However, this right is not absolute, if such speech and

expression is immensely gross and will badly violate the

standards of morality of a society. Therefore, any expression is

subject to reasonable restriction. Freedom of expression has

contributed much to the development and well-being of our free

society.”

64) Insofar as Section 6(4) of the Act is concerned, plea of Mr.

Naphade was that idea was to impose stringent licence conditions for

dance bars in order to avoid any possibility of obscene dance and that

was a rationale for keeping place of dance away from the place where

there is a discotheque or orchestra.

65) Qua Section 8(2), justification of the learned senior counsel was

that this provision is to be read along with Section 8(1) of the Act.

Section 8(1) makes the Act of using the place in contravention of Section

3 as punishable offence. In this hue, sub-section (2) of Section 8

provides that such place would not be allowed for obscene dance or to

exploit any working woman for any immoral purpose at such a place,

making such Act also an offence punishable under the Act. In that

66

sense, argued Mr. Naphade, Section 8(2) is a separate offence

prescribed in a separate law that is under the Maharashtra Act which is

distinct from Section 292 IPC.

66) In respect of Section 8(4) of the Act which prescribes giving of tips

to dancers, Mr. Naphade defended the same with the submission that it

is a matter of cultural ethos of the society. Herein, when the purpose is

to protect the dignity of women, such a prohibition would be justified. In

this vein, his further argument in support of such a provision was that

showering money is a method of inducement which has to be checked.

In any case, such is the the perception of the State prompting the

legislature to make a provision of this kind, which cannot be labelled as

fanciful. Mr. Naphade also referred to Section 354A of IPC which has

widened the scope of ‘sexual harassment’ and made it an offence. He

submitted that it can be treated as moral code of the society. Therefore,

Section 8(4) has to be judged through such a lens. In the alternative, he

argued that principle of severability can always be applied and the

provision should be saved by excising offending portions therefrom.

67) Rule 2(b) of the Rules which defines ‘criminal record’ was sought

to be justified on the ground that this provision is made to instill purity in

public life. It takes its colour from ‘moral turpitude’ as mentioned in the

definition itself. According to the learned senior counsel, the question

67

was as to whether such a record has to be based on conviction or even

when there is FIR/complaint against a particular person, cognizance

whereof is taken by the Court. His suggestion, in this behalf, was that

this provision was capable of reading down and the Court was free to do

so.

68) Argument of the petitioners predicated on Article 19(1)(a) of the

Constitution, namely, fundamental rights of the dance bars or that of

dancers was sought to be placated with the submission that balancing

between that right on the one hand and prevention of obscenity on the

other hand was necessitated. In this behalf, he referred to clause (2) of

Article 19 as per which reasonable restriction can be imposed inter alia

in the interest of ‘public order, decency or morality’. Therefore, morality

aspects had to be taken into consideration while adjudging the validity of

these provisions, argued the learned senior counsel. On the same lines,

Mr. Naphade also tried to meet the argument based on Article 19(1)(g)

of the Constitution by taking shelter under clause (6) of Article 19 which

permits the State to make law imposing reasonable restrictions in the

interest of general public.

69) With respect to Schedule under Rule 3, Mr. Naphade’s defence of

Condition No. 2 thereof was that it ensures safety. Likewise, Condition

No. 11 of Part A is a matter of policy and it is the prerogative of the law

68

maker to fix the distance. Regarding Condition No. 2 of Part B,

submission of the learned senior counsel was that it is based on

economic reality that there is an exploitation of such working clause and,

therefore, the rule maker rightly laid down the condition that the working

women must be employed under a written contract on a monthly salary

which needs to be deposited in their bank accounts. Similarly, other

clauses were also in public interest and to achieve the purpose behind

the Act qua clause (20) of Part B, specific submission was that right to

privacy comes to an end when there is a possibility of commission of

trying and this clause aimed at preventing such a crime. Summing up

his arguments, Mr. Naphade took the matter to another level by arguing

that international trend is to frame the law based on morality. Such a

noble purpose which this Act seeks to achieve cannot be countenanced.

He paraphrased it with the following legal proposition:

(i)Activity which has a criminal colour can always be regulated or

even banned by the legislature.

(ii)Principle of res extra commercium had to be kept in mind which

lays down that there is no fundamental right in those economic activities

which come under the aforesaid maxim. However, it is the State which

still permits these activities and, therefore, State has every right to

permit such an activity within a particular regulatory framework. It is that

which was precisely done by the various provisions under the Acts and

69

the Rules.

(iii)Test of reasonableness is contextual and varies in different

situations. It is based on proportionality. This test would be stricter

where there is freedom of trade and such a stricter test is justified in the

present context.

70) Ms. Pinky Anand, learned ASG, supported and adopted the

aforesaid submissions of Mr. Naphade. She emphasised that the

present Act was regulatory and not prohibitory in nature. Keeping in

view this purpose of the Act, earlier judgment of the year 2013 in the

case of Indian Hotel and Restaurants Association (1) will not apply.

Another submission of the learned ASG was that the Act prohibits

obscenity, which is even otherwise illegal under the IPC, therefore,

principle of res extra commercium would apply. She referred to the

following judgments to buttress her submission:

(i)State of Bombay v. R.M.D. Chamarbaugwala & Anr.

21

"41. It will be abundantly clear from the foregoing observations

that the activities which have been condemned in this country

from ancient times appear to have been equally discouraged and

looked upon with disfavour in England, Scotland, the United

States of America and in Australia in the cases referred to above.

We find it difficult to accept the contention that those activities

which encourage a spirit of recklesss propensity for making easy

gain by lot or chance, which lead to the loss of the hard earned

money of the undiscerning and improvident common man and

thereby lower his standard of living and drive him into a chronic

state of indebtedness and eventually disrupt the peace and

happiness of his humble home could possibly have been intended

by our Constitution makers to be raised to the status of trade,

211957 SCR 874

70

commerce or intercourse and to be made the subject-matter of a

fundamental right guaranteed by Article 19(1)(g). We find it difficult

to persuade ourselves that gambling was ever intended to form

any part of this ancient country's trade, commerce or intercourse

to be declared as free under Article 301. It is not our purpose nor

is it necessary for us in deciding this case to attempt an

exhaustive definition of the word “trade”, “business”, or

“intercourse”. We are, however, clearly of opinion that whatever

else may or may not be regarded as falling within the meaning of

these words, gambling cannot certainly be taken as one of them.

We are convinced and satisfied that the real purpose of Articles

19(1)(g) and 301 could not possibly have been to guarantee or

declare the freedom of gambling. Gambling activities from their

very nature and in essence are extra-commercium although the

external forms, formalities and instruments of trade may be

employed and they are not protected either by Article 19(1)(g) or

Article 301 of our Constitution.”

(ii)State of Tamil Nadu represented by its Secretary, Home,

Prohibition and Excise Department & Ors. v. K. Balu & Anr.

22

"16. We are conscious of the fact that the policy of the Union

Government to discontinue liquor vends on National highways

may not eliminate drunken driving completely. A driver of a motor

vehicle can acquire liquor even before the commencement of a

journey or, during a journey at a place other than a national or

State highway. The law on preventing drunken driving also

requires proper enforcement. Having said this, the Court must

accept the policy of the Union Government for more than one

reason. First and foremost, it is trite law that in matters of policy, in

this case a policy on safety, the Court will defer to and accept a

considered view formed by an expert body. Second, as we have

seen, this view of the Union Government is based on statistics

and data which make out a consistent pattern year after year.

Third, the existence of liquor vends on highways presents a

potent source for easy availability of alcohol. The existence of

liquor vends, advertisements and signboards drawing attention to

the availability of liquor coupled with the arduous drives

particularly in heavy vehicles makes it abundantly necessary to

enforce the policy of the Union Government to safeguard human

life. In doing so, the Court does not fashion its own policy but

enforces the right to life under Article 21 of the Constitution based

on the considered view of expert bodies.”

22(2017) 2 SCC 281

71

Consideration by the Court:

71) In Indian Hotel and Restaurants Association (1) case, Section

33A was held to be unconstitutional as it was found foul of Articles 14,

19(1)(a) and 19(1)(g) of the Constitution. We have reproduced Section

33A of the said Act as well as the Statement of Objects and Reasons

appended to the Bill vide which the aforesaid amendment was

introduced. Statement of Objects and Reasons thereto shows that the

main purpose behind inserting Section 33A in Maharashtra Police Act

was to check the performance of dances in eating houses, permit rooms

or bear bars in an indecent manner. It noted that such places to whom

licenses to hold dance performance were granted, were permitting the

performance of dances in an indecent, obscene and vulgar manner.

Further, such performance of dances were giving rise to exploitation of

women and were derogatory to the dignity of women. They were also

likely to deprave, corrupt or injure the public morality or morals.

Because of these reasons, the Government of Maharashtra considered

it expedient to prohibit altogether the holding of such dance

performances in eating houses or permit rooms or bear bars. To

achieve this purpose, Section 33A prohibits holding of the performance

of dance, of any kind or type, in any eating house, permit room or bear

bar. To make this prohibition effective, all such licenses given earlier

were cancelled by the said statutory provision. Holding of such

72

performances was also made a punishable offence. At the same time,

Section 33B provided exception to Section 33A inasmuch as Section

33A was made inapplicable in certain cases. As per Section 33B,

provisions of Section 33A was not to apply to the holding of the dance

performance in a drama theatre, cinema theatre and auditorium; or

sports club or gymkhana, where entry is restricted to its members only,

or a three-starred or above hotel or in any other establishment or class

of establishments, which, having regard to (a) the tourism policy of the

Central or State Government for promoting the tourism activities in the

State; or (b) cultural activities, the State Government may, by special or

general order, specify in this behalf.

72) Two features of these provisions may be noted:

(i)In the first place, there was absolute prohibition of dance

performances in the establishments covered by Section 33A. Such

dance performances were treated, per se, obscene. In contrast, the

present regime prohibits ‘obscene dance’ and defines this term as well.

(ii)In contrast, in the establishments covered by Section 33B, there

was no bar on such performances.

73) Striking down the provisions of Section 33A as discriminatory, the

Court held that there was no reasonable basis for any classification

between those places where such performance of dance was prohibited

73

under Section 33A and those places where such a performance was

permitted as specified in Section 33B of the Maharashtra Police Act.

Discussion in this behalf is contained, more specifically, in paras 118 to

122 of the judgment which have already been reproduced above. That

reason may not apply to the impugned Act and Rules herein inasmuch

as no such distinction is made now. At the same time, some of the

discussion from this judgment would be relevant. The Court also held

that Section 33A offended Article 19(1)(a) of the Constitution inasmuch

as dance is a form of expression and the said provision amounted to

unreasonable restriction which is not protected by Article 19(2) of the

Constitution. Further, the basis on which Section 33A was found to be

violative of Article 19(1)(g) may also be relevant. We would, therefore,

like to cull out the main features of the discussion contained in Indian

Hotel and Restaurants Association (1) Indian Hotel and

Restaurants Association (1). These are:

(a)There was little or no material on the basis of which the State

could have concluded that dance in the prohibited establishments was

likely to deprave, or injure the public morality or morals.

While making these remarks, the Court specifically rejected the

findings in PRAYAS and Shubhada Chaukar's Reports.

(b)Argument of the State to justify the provision based on intelligible

differentia, viz., that women who perform in the banned establishment

74

come from grossly deprived backgrounds and are a vulnerable lot who

are trafficked into bar dancing, was specifically rejected by pointing out

that there was no material/evidence to support such a plea. Nothing in

this behalf was stated in the Statement of Objects and Reasons and this

plea was projected for the first time in the affidavit filed before the High

Court. The Court, in the process, held that such a plea was based on

PRAYAS and Shubhada Chaukar's Reports. In the opinion of the Court,

isolated examples given therein would not be sufficient to establish the

connection of dance bars covered under Section 33A with trafficking.

(c)Performance of dance in such places could not be covered by the

principle of res extra commercium. Prohibition on such a commercial

activity, which was a fundamental right, had to meet the test of

‘reasonable restriction’. However, held the Court, the State had failed to

establish that the restriction is reasonable or that it is in the interest of

general public.

(d)There are already sufficient rules and regulations and legislations

in place which, if efficiently apply, would control (if not eradicate) all the

dangers to the society enumerated in the preamble and the Statement of

Objects and Reasons of the impugned legislation. Such legislations as

well as rules and regulations were specifically noted in Paras 127 to

131.

75

(e)The Court held, in para 132 of the judgment, that the Rules under

the Bombay Police Act have been framed in the interest of public safety

and social welfare and to safeguard the dignity of women as well as to

prevent exploitation of women. There is no material placed on record by

the State to show that it was not possible to deal with the situation within

the framework of the existing laws, except for the unfounded

conclusions recorded in the Preamble as well as the Statement of

Objects and Reasons.

(f)Argument of the State that impugned enactment is a form of

additional regulation, as it was felt that the existing system of licence

and permits were insufficient to deal with the problem of ever increasing

dance bars, was specifically rejected.

(g)The Court also mentioned the effect of Section 33A in the following

words:

"136. The end result of the prohibition of any form of dancing in

the establishments covered under Section 33-A leads to the only

conclusion that these establishments have to shut down. This is

evident from the fact that since 2005, most if not all the dance bar

establishments have been literally closed down. This has led to

the unemployment of over 75,000 women workers. It has been

brought on the record that many of them have been compelled to

take up prostitution out of necessity for maintenance of their

families. In our opinion, the impugned legislation has proved to be

totally counter-productive and cannot be sustained being ultra

vires Article 19(1)(g).”

74) In contrast, the object which the impugned Act seeks to subserve

is to provide for prohibition of obscene dance in hotels, restaurants, bar

rooms and other establishments. It also seeks to improve the conditions

76

of work, as well as to protect the dignity and safety of women in such

places with a view to prevent their exploitation. As pointed out above,

this Act applies to all such hotels, restaurants, bar rooms and

establishments and the Act does not carve out two categories of such

places unlike Sections 33A and 33B of the Maharashtra Police Act. In

that sense, argument of discrimination based on creating two classes

without any reasonable basis, is not available, nor was it argued. It also

cannot be denied that the aforesaid objectives are in general public

interest inasmuch as nobody can argue that there should not be any

prohibition of dances which are obscene, nor can it be argued that

suitable provisions should not be made to protect the dignity and safety

of women in such places with a view to prevent their exploitation. It is

for this reason that the petitioners have not questioned the validity of the

Act and the Rules framed therein, in their entirety. Instead, they feel

aggrieved by certain provisions which, according to them, are

unreasonable and have the effect of putting a complete prohibition on

any type of dance performances, even if they are not obscene. They

have also argued that the conditions and restrictions which are imposed

by the Act and the Rules for obtaining a licence under the said Act are

so severe and impossible to perform, with the result no person would be

able to obtain a licence under this Act. It is also emphasised that in spite

of categorical observations in Indian Hotel and Restaurants

77

Association (1) case that there was no material before the State to

support its plea that women at such places were exploited, the

legislature has passed the Act almost on the same lines on which

Section 33A in Maharashtra Police Act was inserted, without any fresh

exercise or empirical study in this behalf. These arguments shall be

touched upon while dealing with the specific provisions of the Act and

the Rules, validity whereof is questioned in these petitions. As a matter

of fact, we may point out at this juncture itself, that not a single

establishment is given any licence so far under Section 3 of the

impugned Act. This was candid statement made by Mr. Naphade at the

bar. It shows that some of the conditions and restrictions imposed by

the Act and the Rules are such which are impossible to perform and,

therefore, in each and every case, without exception, the applications for

grant of licence under this Act have been rejected.

75) We would like to deal at this stage with the argument of morality,

as advanced by by Mr. Naphade. The question is to what extent the

State can go in imposing ‘morality’ on its citizens? In the first instance,

we would take note of certain judgments of this Court touching upon this

aspect. Following discussion in State of Punjab & Anr. v. Devans

Modern Breweries Ltd. & Anr.

23

may be relevant in this behalf:

"48. Dealing in a commodity which is governed by a statute

cannot be said to be inherently noxious and pernicious. A society

23(2004) 11 SCC 26

78

cannot condemn a business nor there exists a presumption in this

behalf if such business is permitted to be carried out under

statutory enactments made by the legislature competent therefor.

The legislature being the final arbiter as to the morality or

otherwise of the civilised society has also to state as to

business in which article(s) would be criminal in nature. The

society will have no say in the matter. The society might have a

say in the matter which could have been considered in a court of

law only under common-law right and not when the rights and

obligations flow out of statutes operating in the field. Health,

safety and welfare of the general public may again be a matter for

the legislature to define and prohibit or regulate by legislative

enactments. Regulatory statutes are enacted in conformity with

clause (6) of Article 19 of the Constitution to deal with those

trades also which are inherently noxious and pernicious in nature;

and furthermore, thereby sufficient measures are to be taken in

relation to health, safety and welfare of the general public. The

courts while interpreting a statute would not take recourse to such

interpretation whereby a person can be said to have committed a

crime although the same is not a crime in terms of the statutory

enactment. Whether dealing in a commodity by a person

constitutes a crime or not can only be the subject-matter of a

statutory enactment.

xx xx xx

51. From the analysis of decisions rendered by this Court in

Cooverjee B. Bharucha [AIR 1954 SC 220 : 1954 SCR 873],

R.M.D. Chamarbaugwala [AIR 1957 SC 699 : 1957 SCR 874],

Har Shankar [(1975) 1 SCC 737 : AIR 1975 SC 1121 : (1975) 3

SCR 254] or Khoday Distilleries [(1995) 1 SCC 574] it will appear

that a person cannot claim any right to deal in any obnoxious

substance on the ground of public morality. The State, therefore,

is entitled to completely prohibit any trade or commerce in

potable liquor. Such prohibition, however, has not been imposed.

Once a licence is granted to carry on any trade or business, can it

be said that a person is committing a crime in carrying on

business in liquor although he strictly complies with the terms and

conditions of licence and the provisions of the statute operating in

the field? If the answer to the said question is to be rendered in

the affirmative it will create havoc and lead to anarchy and judicial

vagaries. When it is not a crime to carry on such business having

regard to the fact that a person has been permitted to do so by

the State in compliance with the provisions of the existing laws,

indisputably he acquires a right to carry on business. Even in

respect to trade in food articles or other essential commodities

either complete prohibition or restrictions are imposed in the

matter of carrying on any trade or business, except in terms of a

79

licence granted in that behalf by the authorities specified in that

behalf. The distinction between a trade or business being carried

out legally or illegally having regard to the restrictions imposed by

a statute would have, therefore, to be judged by the fact as to

whether such business is being carried out in compliance with the

provisions of the statute(s) operating in the field or not. In other

words, so long it is not made impermissible to carry on such

business by reason of a statute, no crime can be said to have

been committed in relation thereto. The doctrine of res extra

commercium, thus, would not be attracted, whence a person

carries on business under a licence granted in terms of the

provisions of the regulatory statutes.

xx xx xx

317. The matter is covered by statutory provisions. The court

cannot interpret equality, freedom or commerce clauses of

the Constitution in such a manner so as to take away the

rights and obligations created under a statute on the ground

of public morality or otherwise. When a statute permits a

trade, morality takes a back seat as “legislature” as

contradistinguished from “judiciary” is supposed to be the

authority to consider the morality or otherwise of certain

things prevailing in the society.

76) We may also note, with profit, the following discussion in Gobind

v. State of Madhya Pradesh & Anr.

24

:

"22. There can be no doubt that privacy-dignity claims deserve to

be examined with care and to be denied only when an important

countervailing interest is shown to be superior. If the Court does

find that a claimed right is entitled to protection as a fundamental

privacy right, a law infringing it must satisfy the compelling State

interest test. Then the question would be whether a State interest

is of such paramount importance as would justify an infringement

of the right. Obviously, if the enforcement of morality were held to

be a compelling as well as a permissible State interest, the

characterization of a claimed right as a fundamental privacy right

would be of far less significance. The question whether

enforcement of morality is a State interest sufficient to justify

the infringement of a fundamental privacy right need not be

considered for the purpose of this case and therefore we

refuse to enter the controversial thicket whether enforcement

of morality is a function of State.”

24(1975) 2 SCC 148

80

Some of the moral aspects are discussed in the context of

obscenity in the judgments cited by Mr. Naphade as well.

77) It needs to be borne in mind that there may be certain activities

which the society perceives as immoral per se. It may include gambling

(though that is also becoming a debatable issue now), prostitution etc. It

is also to be noted that standards of morality in a society change with

the passage of time. A particular activity, which was treated as immoral

few decades ago may not be so now. Societal norms keep changing.

Social change is of two types: continuous or evolutionary and

discontinuous or revolutionary

25

. The most common form of change is

continuous. This day-to-day incremental change is a subtle, but

dynamic, factor in social analysis. It cannot be denied that dance

performances, in dignified forms, are socially acceptable and nobody

takes exceptions to the same. On the other hand, obscenity is treated

as immoral. Therefore, obscene dance performance may not be

acceptable and the State can pass a law prohibiting obscene dances.

However, a practice which may not be immoral by societal standards

cannot be thrusted upon the society as immoral by the State with its own

notion of morality and thereby exercise ‘social control’. Furthermore,

and in any case, any legislation of this nature has to pass the muster of

25See A. Etzioni and E. Etzioni (eds.), Social Change (1964); W. Moore, Social

Change (1963), W. Moore and R. Cook (eds.), Readings on Social Change (1967).

81

constitutional provisions as well. We have examined the issues raised

in the aforesaid context.

78) This brings us to the Principle of res extra commercium. Insofar as

dance performances are concerned, it has already been held that it is

not res extra commercium. We would, at this stage, again refer to

Indian Hotel and Restaurants Association (1) where these aspects

are dealt with as under:

(i)Human Trafficking: The State Government contended that several

women performers are victims of illegal trafficking, or minors, and dance

bars are used for soliciting flesh trade. It was suggested that bar girls

hail from depraved backgrounds, and hence, vulnerable to prostitution

and other offences under the Immoral Traffic (Prevention) Act, 1956.

This Court entirely rejected the said contention in the following words:

"119. ...A perusal of the Objects and Reasons would show that

the impugned legislation proceed on a hypothesis that different

dance bars are being used as meeting points of criminals and

pick-up points of the girls. But the Objects and Reasons say

nothing about any evidence having been presented to the

Government that these dance bars are actively involved in

trafficking of women. In fact, this plea with regard to trafficking of

women was projected for the first time in the affidavit filed before

the High Court. The aforesaid plea seems to have been raised

only on the basis of the reports which were submitted after the

ban was imposed. We have earlier noticed the extracts from the

various reports. In our opinion, such isolated examples would

not be sufficient to establish the connection of the dance

bars covered under Section 33-A with trafficking. We,

therefore, reject the submission of the appellants that the

ban has been placed for the protection of the vulnerable

women.”

(emphasis added)

82

(ii)Injury to Public Morals: TheCourt categorically rejected the

contention that the dance bars affect or cause harm to public morale. In

pertinent part, this Court stated that:

"120. ..In our opinion, the State neither had the empirical data to

conclude that dancing in the prohibited establishment necessarily

leads to depravity and corruption of public morals nor was there

general consensus that such was the situation...”

(iii)Res Extra Commercium: The State Government contended that

the dance performances in such establishments affect the dignity of

women and leads to corruption of public morals. Thus, the respondent

justified that the prohibition is a reasonable restriction necessary “in the

interest of general public” as under Article 19(6) of the Constitution. This

Court categorically rejected the said contention, and held that the

respondent “failed to establish that the restriction is reasonable or that it

is in the interest of general public”. This Court further added that the

prohibition fails to satisfy the doctrine of ‘direct and inevitable effect’ to

justify such restriction, and the insufficiency of the existing regulatory

framework.

79) Keeping in mind the aforesaid principles, we advert to the specific

provisions.

Re: Section 2(8)(i) of the Act

80) Section 2(8) defines obscene dance. In the main body, it states

that any dance which comes within the meaning of Section 294 of IPC

83

and any other law for time being in force, shall be treated as ‘obscene

dance’. To this extent, there is no quarrel. The argument is that the

definition of obscene dance is expanded beyond Section 294 of the IPC

by specifically including following forms of dance:

"2(8)(i) which is designed only to arouse the prurient interest of

the audience; and

(ii) which consists of a sexual act, lascivious movements,

gestures for the purpose of sexual propositioning or indicating the

availability of sexual access to the dancer, or in the course of

which, the dancer exposes his or her genitals or, if a female, is

topless;”

81) Insofar as clause (ii) is concerned, it is a reflection of Section 294

of IPC. Therefore, the petitioners have not taken any exception to this

provision. The grievance is on the inclusion of clause (i). The

submission is that the expression ‘arouse the prurient interest of the

audience’ is vague, incapable of giving precise meaning thereto. It may

be difficult to accept such a submission for the reason that in explaining

as to what kind of books, pamphlets, papers, writings, drawings,

paintings, representations, figures or any other object will be deemed as

obscene, Section 292 of the IPC itself uses this very expression when it

lays down that such books etc. shall be deemed to be obscene if they

are ‘lascivious or appeals to the prurient interest...’. In a way, therefore,

Section 2(8) incorporates the definition of obscenity as laid down in the

IPC which also makes obscene books etc. (Section 292 IPC) as well as

obscene acts and songs (Section 294 IPC) as punishable offences.

84

82) Concise Oxford Dictionary (Tenth Edition, revised) defines the term

‘prurient’ as under:

"Prurient – adj. Having or encouraging an excessive interest in

sexual matters.

- Derivatives prurience n. pruriency n. pruriently adv.

- origin C16 (in the sense ‘having a craving’): from L. prurient-,

prurire ‘itch, long, be wanton’.”

83) Other dictionary meanings given to this expression are:

"(i) Characterised by an inordinate interest in sex; prurient

thoughts. When arousing or appealing to an inordinate interest in

sex; prurient literature.

(ii) Inordinately interested in matters of sex, lascivious. In

Psychology, a person who is unusually or morbidly interested in

sexual thoughts or practices is known as prurient. Likewise,

anything which excites or encourages lustfullness and/or eroticism

is termed as prurient. As per English language, therefore, such

literature or other acts which are marked or tending to arouse

sexual desire or interest or are of laturus, salacious, lascivious,

voyeuristic would be treated as prurient and be categorised as

obscene.”

84) Thus, prurient interest in the context of dance performance would

be a performance which has or which encourages an excessive interest

in sexual matters.

85) We may also point out that the expression ‘prurient interest’ has

come up for judicial determination as well. The U.S. Supreme Court in

Brockett v. Spokane Arcades Inc.

26

has discussed the issue of

obscenity and, in the process, specifically dealt with the expression

‘prurient’, as can be discerned from the following observations:

261985 SCC Online US SC 165: 472 US 491 (1985) : 105 S.Ct. 2794 : 86 L.Ed.2d 394

85

"9. The Court of Appeals was of the view that neither Roth v.

United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498

(1957), nor later cases should be read to include within the

definition of obscenity those materials that appeal to only normal

sexual appetites. Roth held that the protection of the First

Amendment did not extend to obscene speech, which was to be

identified by inquiring "whether to the average person, applying

contemporary community standards, the dominant theme of the

material taken as a whole appeals to prurient interest."Id., at 489,

77 S.Ct., at 1311 (footnote omitted). Earlier in its opinion, id., at

487, n. 20, 77 S.Ct., at 1310, n. 20, the Court had defined

"material which deals with sex in a manner appealing to prurient

interest" as:

"I.e., material having a tendency to excite lustful thoughts.

Webster's New International Dictionary (Unabridged, 2d ed.,

1949) defines prurient, in pertinent part, as follows:

" '. . . Itching; longing; uneasy with desire or longing; of

persons, having itching, morbid, or lascivious longings; of

desire, curiosity, or propensity, lewd. . . .'

"Pruriency is defined, in pertinent part, as follows:

" '. . . Quality of being prurient; lascivious desire or

thought. . . .'

"See also Mutual Film Corp. v. Industrial Comm'n, 236 U.S.

230, 242 [35 S.Ct. 387, 390, 59 L.Ed. 552 (1915) ] where

this Court said as to motion pictures: '. . . They take their

attraction from the general interest, eager and wholesome it

may be, in their subjects, but a prurient interest may be

excited and appealed to. . . .' (Emphasis added.) "We

perceive no significant difference between the meaning of

obscenity developed in the case law and the definition of the

A.L.I., Model Penal Code, § 207.10(2) (Tent.Draft No. 6,

1957), viz.:

" '. . . A thing is obscene if, considered as a whole, its

predominant appeal is to prurient interest, i.e., a shameful or

morbid interest in nudity, sex, or excretion, and if it goes

substantially beyond customary limits of candor in

description or representation of such matters. . . .' See

Comment, id., at 10, and the discussion at page 29 et seq."

xx xx xx

12. The Court of Appeals was aware that Roth had indicated in

footnote 20 that material appealing to the prurient interest was

86

"material having a tendency to excite lustful thoughts" but did not

believe that Roth had intended to characterize as obscene

material that provoked only normal, healthy sexual desires. We do

not differ with that view. As already noted, material appealing to

the "prurient interest" was itself the definition of obscenity

announced in Roth; and we are quite sure that by using the words

"lustful thoughts" in footnote 20, the Court was referring to sexual

responses over and beyond those that would be characterized as

normal. At the end of that footnote, as the Court of Appeals

observed, the Roth opinion referred to the Model Penal Code

definition of obscenity—material whose predominate appeal is to

"a shameful or morbid interest in nudity, sex, or excretion" and

indicated that it perceived no significant difference between that

definition and the meaning of obscenity developed in the case

law. This effectively negated any inference that "lustful thoughts"

as used earlier in the footnote was limited to or included normal

sexual responses. [ This conclusion is bolstered by a subsequent

footnote, 354 U.S., at 489, n. 26, 77 S.Ct., at 1311, n. 26, referring

to a number of cases defining obscenity in terms of "lust" or

"lustful." See Parmelee v. United States, 72 App.D.C. 203, 210,

113 F.2d 729, 736 (1940) (material is protected if "the erotic

matter is not introduced to promote lust"); United States v.

Dennett, 39 F.2d 564, 569 (CA2 1930) (sex education pamphlet

not obscene because tendency is to "rationalize and dignify [sex]

emotions rather than to arouse lust"); United States v. One Book

Called "Ulysses," 5 F.Supp. 182, 184 (SDNY 1933), aff'd, 72 F.2d

705 (CA2 1934) (meaning of the word "obscene" is "[t]ending to

stir the sex impulses or to lead to sexually impure and lustful

thoughts"); Commonwealth v. Isenstadt, 318 Mass. 543, 549-550,

62 N.E.2d 840, 844 (1945) (material is obscene if it has "a

substantial tendency to deprave or corrupt its readers by inciting

lascivious thoughts or arousing lustful desire"); Missouri v. Becker,

364 Mo. 1079, 1085, 272 S.W.2d 283, 286 (1954) (materials are

obscene if they "incite lascivious thoughts, arouse lustful desire");

Adams Theatre Co. v. Keenan, 12 N.J. 267, 272, 96 A.2d 519,

521 (1953) (BRENNAN, J.) (question is whether "dominant note of

the presentation is erotic allurement 'tending to excite lustful and

lecherous desire' ").] It would require more than the possible

ambiguity in footnote 20 to lead us to believe that the Court

intended to characterize as obscene and exclude from the

protection of the First Amendment any and all speech that

aroused any sexual responses, whether normal or morbid.”

87

86) South African Court followed the aforesaid American approach,

which can be seen from the following discussion in Patrick v. Minister

of Safety and Security

27

:

"40. Attempts to produce and apply a definitive, certain and

satisfactory definition of obscenity have taxed the ingenuity of

American judges. In Jacobellis v. Ohio, Justice Potter Stewart

famously declared: “I shall not today attempt further to define

[obscenity] … and perhaps I could never succeed in intelligibly

doing so. But I know it when I see it.” [378 U.S. 184, 197 (1964)

(concurring).] The Court has attempted to clarify the Miller test by

defining a “prurient” interest in sex as a “shameful or morbid”

interest, as opposed to a “normal and healthy” interest. [Brockett

v. Spokane Arcades, Inc.,, 472 U.S. 491, 504-05 (1985).] In my

opinion, that elaboration does not, in itself, furnish a great deal of

guidance.”

87) Even Delhi High Court has accepted the manner in which

American Courts have dealt with the subject, which can be seen from

the following observations in Amitabh Bachhan Corporation Ltd. v.

Om Pal Singh Hoon

28

:

"22. Question also arose before the U.S. Supreme Court in F.C.C.

v. Pacifica Foundation (1978) 438 U.S. 726) as to the meaning of

of word ‘indecent’. It was contended, relying on certain rulings that

the particular words used in the radio broadcast were not

‘obscene’ and therefore not ‘indecent’, as both words were

synonymous. The majority of the Court rejected the contention.

The argument was stated as follows: “Pacifica argues, however,

that this Court has construed the term ‘indecent’ in related

statutes as obscene”. Rejecting the same, Stevens, J held:

“The words ‘obscene, indecent or profane’ are disjunctive,

implying that each has a separate meaning. Prurient appeal

is an element of the obscene, but the normal definition of

‘indecent’ merely refers to non-conformance with accepted

standards of morality.”

271996 SCC Online ZACC 8 : [1996] ZACC 7

281996 SCC Online Del 268 : (1996) 37 DRJ 352 (DB)

88

He quoted the meaning from Webster's Third New International

Dictionary (1960): “Unseemly, not conforming to generally

accepted standards of morality”.

88) This Court in Raj Kapoor & Ors. v. State & Ors.

29

considered the

question: When can a film to be publicly exhibited be castigated as

prurient and obscene and violative of norms against venereal depravity.

Thus, nowhere it is challenged as a vague term, incapable of precise

definition.

89) It, therefore, cannot be said that a dance which is aimed at

arousing the prurient interest of the audience is vague term, incapable of

definite connotation. It is, more so, when Section 292 IPC particularly

uses this expression in the deeming provision relating to obscenity.

Re: Whether Section 6(4) of the Act is violative of equality clause

enshrined in Article 19(1) of the Constitution?

90) This provision forbids grant of licence for discotheque or orchestra

where licence under this Act is granted. Conversely it also forbids grant

of licence under this Act for the place for which a licence for discotheque

or orchestra has been granted. It means that in respect of a particular

place, a licence would be granted either for dance bars or for

discotheque/orchestra and not for both purposes. Submission is that

there is no rationale for such a provision. The reply given by the

29(1980) 1 SCC 43

89

respondents is that the purpose behind the aforesaid provision is to put

stringent licence conditions for dance bars, which would not be possible

if discotheque or orchestra as also on the same place where there is a

dance bar. We hardly find this to be a valid justification. The impugned

provision, in our view, is totally arbitrary and irrational and has no nexus

with the so-called purpose sought to be achieved. We, therefore, strike

down Section 6(4) of the Act as unconstitutional.

Re: Whether punishment provided under Section 8(2) of the Act is

discriminatory and offends Article 14 of the Constitution?

91) Precise submission of the petitioners in this behalf is that this

punishment is for those who allow obscene dance etc. Obscenity is also

an offence under Section 294 IPC which is punishable with

imprisonment that may extend to three months. In contrast, as per the

impugned provision, the imprisonment may extend to three years. It is,

thus, argued that for the same offence, whereas the Central Act

prescribes imprisonment upto three months, the prescription of

imprisonment upto three years in Section 8(2) of the Act is violative of

Article 14 and is in conflict with the IPC i.e. the central law. We are not

impressed with this argument. As rightly argued by the respondents,

sub-section (2) has to be read along with sub-section (1) of Section 8.

Under Section 8(1), if the place is used in contravention of Section 3, it

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is made a punishable offence. It means that where a hotel, restaurant,

bar room or any place is used for staging dances without obtaining a

licence under Section 3 of the Act, that is made a punishable offence.

However, even if licence is obtained, that would not mean that place can

be used for obscene dance performances or for exploiting working

women for any immoral purpose. It is these acts which are made

punishable under sub-section (2). In this manner, the offence under

Section 8(2) is somewhat different from the offence that is stipulated in

Section 294 IPC which is clear from the language of Section 294, that

reads as under:

"294. Obscene acts and songs.—Whoever, to the annoyance of

others—

(a) does any obscene act in any public place, or

(b) sings, recites or utters any obscene song, ballad or words, in

or near any public place, shall be punished with imprisonment of

either description for a term which may extend to three months, or

with fine, or with both.”

92) Challenge to the validity of Section 8(2) of the Act, therefore, fails.

Re: Whether Section 8(4) of the Act is arbitrary and violative of Article

14?

93) This provision is to be read with condition Nos. 6, 7 and 8 of Part

B. It makes throwing or showering coins, currency notes or any article

or anything which can be monetized on the stage or handing over

personally such notes, to a dancer is banned and treated as an offence.

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Further stipulation in these provisions is that any tip to be given should

be added in the bill only and is not to be given to the performers etc.

The justification given by the State is that showering of money etc. is a

method of inducement which has to be curbed keeping in view that Act

aims to protect the dignity of women. According to the respondents,

Section 354A of IPC which is a moral code of the society and the State

is only attempting to preserve this moral code by enacting such a

provision. We are of the opinion that insofar as throwing or showering

coins, currency notes etc. is concerned, the provision is well justified as

it aims at checking any untoward incident as the aforesaid Act has

tendency to create a situation of indecency. Therefore, whatever money,

any appreciation of any dance performance, has to be given, can be

done without throwing or showering such coins etc. However, there may

not be any justification in giving such tips only by adding thereto in the

bills to be raised by the administration of the place. On the contrary, if

that is done, the person who is rightful recipient of such tips may be

denied the same. Further, State cannot impose a particular manner of

tipping as it is entirely a matter between an employer and performer on

the one hand and the performer and the visitor on the other hand. We,

therefore, uphold the provision insofar as it prohibits throwing or

showering of coins, currency notes or any article or anything which can

be monetised on the stage. However, handing over of the notes to the

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dancers personally is not inappropriate. We also set aside the provision

of giving the tips only by adding the same in the bills.

94) Vide Section 12, Grievance Redressal Committee is constituted.

Grievance of Mr. Nayyar, as noted above, is that it should have

representation of bar dancers as well. Though, such a representation

may be desirable, that by itself cannot be a ground to invalidate a

legislation. We, therefore, leave it to the law makers to consider this

aspect.

Legality of certain Rules

95) Insofar as Rule 3(3)(i) is concerned, there is a substance in the

submission of the petitioners that it is quite vague. As per this sub-rule,

a person is entitled to obtain or hold licence who possesses a ‘good

character’ and ‘antecedents’ and he should not have any history of

‘criminal record’ in the past ten years. However, the terms ‘good

character’ or ‘antecedents’ or ‘criminal record’ are not definite or precise.

These expressions are capable of any interpretation and, therefore, it is

left to the wisdom of the licensing authority to adjudge whether a

particular person possesses good character or good antecedents or not.

Likewise, insofar as history of criminal record is concerned, it is not

spelled out as to whether such a criminal record is based on conviction

in a case or mere lodging of FIR would be termed as criminal record.

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We, therefore, quash the provision in the present form, but, at the same

time, give liberty to the rule making authority to have suitable provision

of precise nature. Consequently, condition No. 16 of Part B in the

present form is also set aside, with liberty as aforesaid.

96) Adverting to Condition No. 2 of Part A of general conditions (GOC),

it can be dissected as under:

(i) Size of stage in the bar room should not be less than 10 feet x 12

feet. There is no objection to this.

(ii)It further stipulates that the stage in bar room has to be with

non-transparent partition between hotel, restaurant and bar room area.

In essence, it segregates bar room area from hotel and restaurant.

(iii)Fixed partition is prescribed between permit room and dance

room.

97) It is this part which is taken exception of by the petitioners. We

find that on an earlier occasion, similar condition was struck down by

this Court. Even otherwise, we do not find any rationality or justification

in imposing such a condition which appears to be quite unreasonable

and there cannot be any rationale in this provision having regard to any

objective sought to be achieved. Therefore, this provision is struck

down.

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98) As far as condition No.11 of Part A is concerned which stipulates

that the place where dance is to be performed shall be at least 1 km

away from the educational and religious institutions, the petitioners are

right in their submission that such a condition does not take into account

the ground realities particularly in the city of Mumbai where it would be

difficult to find any place which is 1 km away from either an education

institution or a religious institution. This, therefore, amounts to fulfilling

an impossible condition and the effect thereof is that, at no place, in

Mumbai, licence would be granted. Therefore, this condition is also held

to be arbitrary and unreasonable and is quashed, with liberty to the

respondents to prescribe the distance from educational and religious

institutions, which is reasonable and workable.

99) Insofar as condition No.2 of Part B is concerned, it imposes an

obligation on the employers to the effect that working women, the

dancers and waiters/waitresses must be employed under a written

contract on a monthly salary. Further, this monthly salary is to be

deposited in their bank accounts with all the benefits required under the

law. Copy of such contracts is to be deposited with the licensing

authority as well. Insofar as provision relating to entering into a written

contract as well as depositing of the remuneration in the bank accounts

is concerned, it appears to be justified as it would make the conditions

on which such working women, dancers and waiters/waitresses are

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employed, transparent thereby eliminating or minimising any chances of

exploitation or other disputes. However, the condition of employing such

persons on monthly salary does not stand the judicial scrutiny. This

shows that such persons are to be employed in a particular manner i.e.

on monthly basis. There can be other modes of employment

permissible in law and the employers have legal right to adopt such

modes. For example, it could be employment on contract basis i.e.

where the remuneration can be fixed for each performance. Moreover, it

impinges upon the rights of such workers as well who may, otherwise,

be free to give their performances at more than one place. Therefore, it

imposes restriction even upon such employees and infringes their right

under Article 19(1)(g). This is the grievance raised on behalf of such

women in the petition argued by Mr. Nayyar who submitted that the

provisions adversely affect women dancers by (i) restricting their

freedom to move from one bar to another at their will, if the work

conditions or the returns are not suitable; (ii) prohibit them from

monetizing dances other than by way of receiving salary or shared tips.

More importantly, the State Government has failed to show any

compelling public interest to curtail the choices of women performers.

We find substance in the aforesaid submission and, therefore, set aside

this part of Condition No. 2. We make it clear that the provisions for

written contract, deposit of the remuneration in the bank accounts of the

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employee as well as submission of these written contracts with the

licensing authority are appropriate. Rest of the provision is struck down.

100)Adverting to the condition No. 9 of Part B which prescribes timing

of such dance performances only between 6 pm to 11:30 pm, we do not

find it to be manifestly unreasonable. Merely because establishments

are otherwise open until 1:30 am (next day) or 12:30 am (next day) does

not mean that the State has no power to restrict the time of dance

performances till 11:30 pm. Even a period of 6 pm to 11:30 pm for

dance performances is quite sufficient and substantial as it allows 5½

hours of such performances. We, therefore, uphold this condition.

101)Condition No. 12 of Part B prescribes serving of alcohol in the bar

room where dances are staged. This is totally disproportionate,

unreasonable and arbitrary. We see no reason as to why the liquor

cannot be served at such places. It seems that State is more influenced

by moralistic overtones under wrong presumption that persons after

consuming alcohol would misbehave with the dancers. If this is so, such

a presumption would be equally applicable to bar rooms where the

alcohol is served by women waitresses. However, such conditions have

been held to be unreasonable by the Courts. There may be aberrations

or sporadic incidents of this nature which can happen not only at the

places where dance performances are staged but at other places

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including bar rooms and even main restaurants. Other measures have

to be adopted to check such a nuance. There cannot be a complete

prohibition from serving alcoholic beverages. We, therefore, quash

condition No. 12.

102)Condition No. 20 of Part B mandates installing of CCTV Cameras.

This again would be totally inappropriate and amounts to invasion of

privacy and is, thus, violative of Articles 14, 19(1)(a) and 21 of the

Constitution as held in K.S. Puttaswamy case, where the Court

observed:

"247.3. Anita Allen has, in a 2011 publication, developed the

concept of “unpopular privacy” [Id, at p. 500] . According to her,

Governments must design “unpopular” privacy laws and duties to

protect the common good, even if privacy is being forced on

individuals who may not want it. Individuals under this approach

are not permitted to waive their privacy rights. Among the

component elements which she notices are: (a) physical or spatial

privacy — illustrated by the privacy in the home; (b) informational

privacy including information data or facts about persons or their

communications; (c) decisional privacy which protects the right of

citizens to make intimate choices about their rights from intrusion

by the State; (d) proprietary privacy which relates to the protection

of one's reputation; (e) associational privacy which protects the

right of groups with certain defined characteristics to determine

whom they may include or exclude. [Id, at pp. 500-501]”

This condition is also set aside.

103)Before parting, we would like to re-emphasise that the State

cannot take exception to staging dance performances per se. It appears

from the history of legislative amendments made from time to time that

the respondents have somehow developed the notion that such

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performances in the dance bars do not have moralistic basis. Initially

the law was passed in the year 2005 by inserting Sections 33A and 33B

in the Maharashtra Police Act, 1951. At that time, by the said

amendment, State desired total prohibition on the performance of dance

in eating house, permit room or bear bar on the premise that such

performances are always indecent, obscene or vulgar. It was also on

the notion that such performances were giving rise to exploitation of

women as well. However, while upholding the decision of the High

Court declaring Section 33A of Maharashtra Police Act, 1951 to be

unconstitutional, this Court found and specifically held that there was no

material or empirical data in the aforesaid perception garnered by the

State. This Court also held that the impugned provision did not pass the

muster of constitutional provisions as it was found to be violative of

Articles 14, 19(1)(a) and 19(1)(g) of the Constitution. The Court also

categorically observed that there were enough statutory provisions in

number of Acts and Rules (which are stipulated in Paras 127 to 131 of

the said judgment).

104)The present legislation is given a cloak of bringing regulatory

regime to regulate the places where there are dance performances. For

this purpose, the impugned Act does not permit dance performances

without obtaining licence under Section 3 of the Act. Further, it makes

obscene dances as penal offence. No quarrel on this. However, at the

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same time, many conditions are stipulated for obtaining the licence,

which are virtually impossible to perform. It is this reason that not a

single establishment has been issued licence under the impugned Act

even when it was passed in the year 2014. In fact, after the amendment

in Maharashtra Police Act in 2005, no licences have been granted for

dance bars. Thus, even when the impugned Act appears to be

regulatory in nature, the real consequences and effect is to prohibit such

dance bars. The State, thereby, is aiming to achieve something

indirectly which it could not do directly. Such a situation is beyond

comprehension and cannot be countenanced. We have quashed those

provisions of the Act and the Rules which we have found as

unreasonable and unconstitutional. We hope that applications for grant

of licence shall now be considered more objectively and with open mind

so that there is no complete ban on staging dance performances at

designated places prescribed in the Act.

105)The writ petitions stand partly allowed and are disposed of in the

aforesaid terms.

.............................................J.

(A.K. SIKRI)

.............................................J.

(ASHOK BHUSHAN)

NEW DELHI;

JANUARY 17, 2019.

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